Concept
The Confidential Information Screen
Imputation to the new firm and screening
The Confidential Information Screen
Rule 1.11(c) gives a firm one way to keep a case after hiring a lawyer who carries confidential government information. The firm may 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 from it.1 The lawyer stays personally barred; the screen and the fee condition keep that bar from spreading to everyone else in the firm. Paragraph (c) forbids the firm to take on a representation adverse to the person about whom the lawyer obtained the information when the information could be used to that person's material disadvantage, and screening is the stated way to avoid that imputation.2 Screening is not peculiar to government lawyers. The rules also approve it to avoid imputed disqualification in the migrating-lawyer setting under Rule 1.10.3
The cure names two conditions and no others. A screen must be timely and must keep the lawyer out of any participation in the matter. The fee condition means what it says: any arrangement that gives the lawyer part of the matter's fee fails it. Nothing in the last sentence of paragraph (c) requires notice, either to the lawyer's former agency or to the person the information concerns.4 That silence is the feature to remember. On the participation route under Rule 1.11(b), covered earlier, the firm must also give prompt written notice to the agency. Students who have just learned that three-part cure tend to recite all three conditions for every government-lawyer imputation problem. On the information route that habit produces a wrong answer. A stem that faults the firm for sending no notice describes a requirement that does not exist here.
The usual explanation for the omission turns on whom each route protects. The participation bar looks to the agency, which knows what its former lawyer handled and can judge whether the firm's screen fits that involvement. The information bar looks to the person about whom the information was gathered, and the rule defines the information as something the government is prohibited by law from disclosing or has a privilege not to disclose.5 Telling that person would cause two problems. The representation is adverse to the person, so a notice would warn an adversary that a private party is preparing to act. And a notice explaining why a lawyer was screened could reveal that the government holds the information at all. Notice to the agency instead would solve neither problem, because the agency is not the party protected on this route. Treat this as the rationale behind the text, not as something the rule's words say. With no outside check, compliance rests on the lawyer and the firm themselves, which makes their own care in building the screen and setting compensation matter more.
The lack of a notice requirement can tempt a firm to treat paragraph (c) as a lighter cure, and that reading gets the rule backwards. Both remaining conditions are mandatory. A firm that skips the screen because the rule asks for less paperwork has dropped the condition that does the protective work. A firm that assigns the barred lawyer to the matter as a consultant has defeated the protection outright. Removing the notice step changes nothing about what the screen and the fee restriction demand.
The two routes compare as follows:
- Participation route, Rule 1.11(b): timely screen, no share of the fee, and prompt written notice to the agency.
- Information route, Rule 1.11(c): timely screen and no share of the fee, with no notice requirement.6