The Basic Prohibition

Government Lawyers and Prior Private Matters

The Basic Prohibition

A lawyer who spends months on a matter in private practice and then joins the government may find that same matter on the new desk. Rule 1.11(d)(2)(i) of the Model Rules of Professional Conduct answers that situation. A lawyer currently serving as a public officer or employee may not participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing.¹ The provision sits within Rule 1.11(d), which governs lawyers currently serving as public officers or employees and opens by yielding to any law that expressly permits what the rule would otherwise forbid.²

The prohibition reaches further than courtroom work. On the government side, 'participation' includes not only legal representation as a government lawyer but also other actions or decisions as a government officer or employee on a matter involving specific parties.³ The earlier work, by contrast, must have been done outside government, whether at a law firm or in nongovernmental employment such as in-house service for a company. A lawyer who handled a company's claim as its in-house counsel is therefore covered when she later joins the agency that now handles that claim.

The direction of travel separates this rule from its better-known neighbor. Rule 1.11(a) bars a former public officer or employee from representing a client, in private practice or in another government practice, in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing.⁴ Under (a) the earlier work was public. Under (d)(2)(i) the earlier work was private and the current job is public. A lawyer whose earlier work was done at a law firm or for a company is therefore analyzed under (d)(2)(i), and a lawyer whose earlier work was done for the government is analyzed under (a). The text of (d)(2)(i) also asks nothing about sides. It asks whether the lawyer participated personally and substantially in the matter, not whether the lawyer now opposes the position the old client held.

The bar and the consent exception rest on different reasons. The bar responds to carried-over loyalty. A lawyer who has represented a private client on a specific matter naturally feels allegiance to that client, and when he later helps formulate the government's position on the matter or its resolution, that allegiance can travel with him into the public decision.⁵ The rule removes the lawyer from the matter instead of waiting to see whether the influence operates. The exception has its own logic. The agency represents the public interest, so the agency may waive the objection and let the lawyer proceed. It does so after being informed of the nature of the lawyer's earlier participation, including the lawyer's advice about any risk of continuing influence, and the waiver must be confirmed in writing.⁶

The rule asks about a matter in which the lawyer participated, so the next sections ask what makes an assignment the same matter and what counts as personal and substantial participation. A second assignment for Dana shows why those questions matter.

Agency consent under (d)(2)(i) does not end the analysis. Rule 1.11(d) separately obliges a current government lawyer to comply with Rules 1.7 and 1.9, so the former client's interests can still create a conflict even when the agency has consented.⁷ A later section returns to those rules.