Elements of the Bar

Rule 1.11(c) is one long sentence, but it works as a short test with three conditions, all of which must be met before the bar applies.¹

The lawyer has information that the lawyer knows is confidential government information about a person, acquired while the lawyer was a public officer or employee.
The lawyer would be representing a private client whose interests are adverse to that person.
The matter is one in which the information could be used to that person's material disadvantage.

The rule also opens with a qualifier, “except as law may otherwise expressly permit,” which marks the one place where outside law can lift the prohibition.²

Each condition screens out a case in which the rule has nothing to guard against. A lawyer who holds no qualifying information has nothing to exploit. Information that is public, or that the government is free to disclose, gives the lawyer no edge that a private adversary could not get through ordinary channels. Information that could not hurt the person in the particular matter gives the client no advantage, so disqualification would cost the client a lawyer and protect no one. A bar triggered by any government experience would reach far beyond these risks. The rule's final sentence turns to the lawyer's firm, which may take or keep the matter only if the disqualified lawyer is timely screened and receives no part of the fee, a topic for the next section.³ We begin with the definition, because the second and third conditions matter only after the information qualifies.

Confidential Government Information

The second sentence of Rule 1.11(c) defines its key term, and the whole bar depends on that definition. Information is “confidential government information” only if it passes three tests: the lawyer obtained it under governmental authority; at the time the Rule is applied, the government is prohibited by law from disclosing it to the public or has a legal privilege not to disclose it; and it is not otherwise available to the public.⁴ The lawyer must also know that the information is of that kind.⁵ These requirements make the category far narrower than everything a lawyer learns in public service. A former agency lawyer carries away a great deal of knowledge, and the bar attaches only to the items that pass all three tests.

The first test asks how the lawyer came to hold the information. The lawyer must have obtained it under governmental authority, which means through the government's official functions and not through private channels. The lawyer's role in obtaining it does not matter, because the rule reaches information acquired while the lawyer was a public officer or employee, so a lawyer in a nonlegal post is covered as readily as a government attorney.⁶ Nor must the information concern the lawyer's own client. The rule protects “a person about whom the lawyer obtained confidential government information,” and that person need never have been the lawyer's client.⁷ Paragraph (a) works differently: it bars the lawyer from using or revealing confidential information relating to the representation of a former government client.⁸

The second test looks to the information's legal status, and the Rule fixes the moment for measuring it. When the Rule is applied, the government must be prohibited by law from disclosing the information to the public or must hold a legal privilege not to disclose it.⁹ A statute or regulation forbidding release satisfies the first alternative, and a privilege the government may assert satisfies the second.

Measuring status at the moment of application, rather than the moment the lawyer received the information, ties the definition to what the information is today. Information the government has since released, or that has otherwise lost its legal protection, gives the lawyer no edge over any other lawyer, so barring the representation would protect no one. Information that remains protected stays covered however long ago the lawyer learned it.

The third test screens out information that is protected on paper but obtainable elsewhere. The information must not be otherwise available to the public, so a fact that sits in a published order or an open court file falls outside the definition.¹⁰ When any member of the public can obtain a fact, the lawyer's holding it confers no advantage, and disqualification would take the client's chosen lawyer while shielding no one.

The example shows why the analysis runs item by item and not person by person. A stem that says the lawyer knows a great deal about the adverse party has not yet established paragraph (c), because each piece of knowledge must clear every test. Reading the Rule to cover everything a government lawyer learns is the commonest way to overstate it.

Adversity and Material Disadvantage

Once the information qualifies, Rule 1.11(c) asks what the lawyer is about to do with it. The lawyer may not represent a private client whose interests are adverse to the person the information concerns, in a matter in which the information could be used to that person's material disadvantage.¹² Two conditions sit inside that clause. Adversity asks who stands on the other side of the representation. Material disadvantage asks whether the information could matter once the lawyer is there. Both must be present, and when either is missing the paragraph does not disqualify the lawyer.

The adversity condition identifies whose interests the rule protects: those of the person the information concerns.¹³ The comparison therefore runs between the private client and that person. A former revenue-agency lawyer who holds a landlord's confidential finances may represent the landlord in a rent dispute with a tenant, because the client's interests align with the person the information concerns. The tenant's adversity to the landlord is beside the point. The same holds when the client's dispute is with someone about whom the lawyer holds no confidential government information, since the rule measures adversity to the person whose information the lawyer holds.

The word could makes the second condition a measure of risk. The question is whether the information is capable of being used to the person's material disadvantage in this matter, and the answer does not turn on whether the lawyer has used it, plans to use it, or has promised never to. The rule is preventive: it bars the representation itself instead of policing use after the fact.¹⁴

The qualifier material keeps this risk-based test from sweeping too widely. Knowledge that has no bearing on the matter, or that would change nothing in it, gives the client no meaningful edge, so disqualifying the lawyer would cost the client its chosen lawyer and protect no one. Without that limit, the paragraph would become a general ban on opposing anyone the government has ever dealt with. The two words divide the work: could spares the person from having to prove misuse, and material spares the lawyer from disqualification over information that is beside the point.

A fact pattern may add the lawyer's assurance of good faith, or a statement that the information was never mentioned to the client. Treating that as decisive answers a question the rule does not ask. The test is risk, judged from the nature of the information and the nature of the matter, and the lawyer's sincerity changes neither.

The same reasoning explains why no one must spell out the confidential information to enforce the bar. A disciplinary case against a lawyer who handled a government matter and later represented Libya in private practice illustrates the logic. The court held that the rule places no burden on the disciplinary prosecutor to show what confidential information the lawyer received that could be useful in the private representation, because such a requirement would make the rule enforceable only at the high cost of spilling client confidences onto the public record.¹⁵ The lawyer could still rebut the showing by proving that the factual contexts were different enough that a reasonable person would conclude he had received no useful confidential information in the government matter.¹⁶ That decision applied the participation-based test of paragraph (a), not paragraph (c), so it is useful here only for its enforcement logic. Paragraph (c) builds the same instinct into the word could, and a lawyer shows that the information could not matter by pointing to what the matter involves, without reciting the information.

The clause also speaks of a “matter,” which Rule 1.11(e) defines to include any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter involving a specific party or parties.¹⁷ The definition also covers any other matter governed by the conflict rules of the appropriate government agency.¹⁸ The focus on specific parties separates particular matters from general policymaking, which has no identifiable party for a lawyer to be adverse to.¹⁹ In paragraph (c), the matter is the private client's engagement, such as a lawsuit, a negotiation, or an administrative proceeding in which the lawyer would stand against the person. Most adversarial engagements will qualify, so the live questions are adversity and material disadvantage.

Who May Waive

Paragraph (c) opens with a clause that is easy to skim past: “except as law may otherwise expressly permit.”²¹ It is the only exception written into the bar, and it points outward, to a statute or regulation that addresses when former government employees may take on private work. The rest of the paragraph contains no consent clause. It identifies the barred lawyer, defines the protected information, states the adversity and disadvantage conditions, and tells the firm how it may protect itself, but nowhere does it say that anyone's approval lifts the lawyer's own disqualification.²² A student hunting for a waiver must therefore look outside the text of (c).

The word expressly does real work in that opening clause. Other law displaces the bar only when it speaks to the representation itself. Law that merely fails to forbid the work, or that regulates something nearby, permits nothing.

An exam stem will often recite that the agency reviewed the former lawyer's situation and approved the private engagement in writing, and the question is whether that ends the analysis. Under paragraph (a) it would, because a former government lawyer may handle a matter she worked on in office if “the appropriate government agency gives its informed consent, confirmed in writing.”²³ The agency can give that consent because the lawyer would be acting in work done for it, and paragraph (a) exists in part to stop her from later subverting the decision made or position advocated while she served.²⁴ Paragraph (a) is therefore the home of agency consent, and a student who carries that mechanism into paragraph (c) has imported a feature the text of (c) does not contain.

Paragraph (c) protects a different party. The information concerns a person, and the harm the rule prevents is that this person's confidential information will be turned against them by a lawyer who learned it in public service. The agency holds the information under a legal bar on disclosure, and nothing in (c) gives it power to release the lawyer to use that information against the person it describes.²⁵

On the text, then, nobody can waive paragraph (c) by consent. If anyone could, it would be the person whose information is at stake, but (c) supplies no procedure for that, and a person who stands opposite the lawyer in the very matter where the information could be used has little reason to agree. The working conclusion for an exam is that a (c) problem leaves the lawyer barred unless other law expressly permits the work. The firm's protection comes from screening and a fee bar, which the next section takes up, and never from the agency's blessing.²⁶