Concept
Routing Government Conflicts
Imputation to the new firm and screening
Imputation and Screening Under Rule 1.11
Routing Government Conflicts
A lawyer who leaves public service for a private firm may be personally barred from a matter the firm wants to take. Whether that bar spreads to the firm's other lawyers is a separate question. For a firm with a former or current government lawyer, a different rule answers it than the one that governs most firms. Rule 1.10(d) is the signpost: the disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.1 The sentence says where to look and nothing more. It does not say who is barred or what the firm may do about it, and the rest of this chapter supplies that content.
The signpost makes sense only if you know what it routes the analysis away from. The general rule is Rule 1.10(a): while lawyers are associated in a firm, none of them may knowingly represent a client when any one of them, practicing alone, would be prohibited from doing so by Rule 1.7 or Rule 1.9, unless an exception applies.2 One lawyer's conflict is every lawyer's conflict, and the term for that spread is imputation. It rests on two premises. The firm as a whole owes the client loyalty, whichever lawyer is assigned to the file. Confidential information held by one lawyer is also presumed to be shared with the rest of the firm while the client is being represented.3 Without those premises, a firm could take a matter against its own client simply by handing the file to a colleague down the hall.
Both premises depend on association. A lawyer who leaves a firm sheds the taint of imputed disability at the old firm's door and takes along only the knowledge he actually possessed, not the knowledge imputation presumed he had.4 Imputation thus follows the lawyers who practice together at a given time. When a new lawyer arrives, the question that matters is which rule governs the effect on the new firm.
Rule 1.10(a) has exceptions of its own. The one students most often reach for by mistake is the screening exception for lateral lawyers from private practice in Rule 1.10(a)(2), which a later section compares with government screening. Rule 1.10(d) takes the government lawyer out of that machinery, for current and former government lawyers alike. The current-lawyer side is saved for the end of the chapter. A firm that hires a former prosecutor or agency attorney therefore does not ask whether it has satisfied Rule 1.10(a)(2). It asks what Rule 1.11 demands, and Rule 1.11 has its own imputation provision. Where the lawyer holds confidential government information, the closing sentence of that provision lets the firm undertake or continue the representation only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee.5 The sections that follow take up the conditions one at a time.
In an exam stem that describes a lawyer changing employers, the first task is to identify which rule supplies the imputation answer, and the nature of the lawyer's earlier service settles that. Two scenes show the difference.
Both lawyers carry a personal bar, and both rules use the vocabulary of screening, which is why students blend them. The only fact that separates the scenes is whether the earlier service was public or private, and that fact selects the governing rule. Mixing them up produces wrong answers in both directions. A firm that relies on Rule 1.10(a)(2) for a former agency lawyer skips the conditions Rule 1.11 imposes. A firm that turns to Rule 1.11 for a lawyer arriving from another private firm applies a provision that Rule 1.10(d) never directs it to.