Concept
Agency Consent
Current government lawyer: matters handled in private practice
Agency Consent
Rule 1.11(d)(2)(i) ends with an exception that turns the prohibition into a default the government itself can lift. A current public officer or employee may not participate in a matter handled personally and substantially in private practice or nongovernmental employment "unless the appropriate government agency gives its informed consent, confirmed in writing."1 The earlier sections asked when the bar attaches to a lawyer's assignment. This section asks how a lawyer gets out from under it and still works the matter.
The agency holds that power because of whom the rule protects. The danger is that a private loyalty will bend a public decision, and the public bears the harm when it does. The agency represents the public interest, so it is the party that may waive the objection once it understands the facts.2 The former private client sits on the other side of the risk, because the client would gain from any favoritism. The rule's wording therefore does two things: it puts the decision in the agency's hands, and it requires the agency to decide with knowledge. The first subsection identifies the decider, and the second explains what makes its consent valid.
Consent under (d)(2)(i) answers one question only: may this lawyer take part despite earlier private work on the matter? It leaves untouched the lawyer's separate duties to a former client, which a later section takes up under Rules 1.7 and 1.9.
Who Must Consent
The rule names the consenting party in its own text: "the appropriate government agency."3 Once the agency learns the nature of the lawyer's earlier private participation, it acts as a representative of the public interest and may waive the objection, which permits the lawyer to be involved in the matter.4 A waiver is the protected party's choice to accept a risk, so the first step is to ask whose protection the bar supplies. The text points to the agency, and the structure of the rule shows why no one else qualifies.
The risk behind (d)(2)(i) is that a lawyer who earlier worked for a private client on the matter will carry that influence into the government's position on it or its resolution.5 If that happens, the public's decision has been bent toward a private interest, and the former client collects the benefit. The client's statement that it has no objection therefore says nothing about whether the public decision will be sound, and the client has no authority to give up an interest that belongs to the public. The agency answers for that interest and sees the matter from the inside. The lawyer supplies information, including advice about any risk of continuing influence, but the decision stays with the agency and not with the lawyer whose participation is in question.6
The former client keeps its own protection, which comes from a different rule. A government lawyer may not represent a government officer or entity adverse to a former client, such as a client from an earlier period of private practice, in the same or a substantially related matter.7 The two protections have different holders and ask different questions. Agency consent asks whether the public's decision may bear the risk of carried-over influence, and the former-client rule asks whether the lawyer may act against the former client. A former client's blessing therefore does not satisfy (d)(2)(i), and the agency's consent does not resolve a former-client conflict.
The authority's own ethics process can produce the opposite result on otherwise similar facts.
Exam stems often have the former client announce its approval, and the question being tested is whose objection the rule protects.
Informed and in Writing
Rule 1.11(d)(2)(i) requires the agency's consent to be "informed" and "confirmed in writing."9 The previous subsection identified who must consent, and this one asks what makes that consent valid. The two phrases state separate conditions. Informed governs what the agency knows when it decides, and confirmed in writing governs how the decision is recorded. If either is missing, the bar stays in place, whoever signed. Disclosure comes first because a writing can preserve only a decision already made on adequate knowledge.
Consent is informed when the agency has learned the nature of the lawyer's participation in the matter during private practice or nongovernmental employment, including the lawyer's advice about any risk of continuing influence from that work.10 Agency consent is a judgment that the risk is acceptable on these facts, and a judgment is only as good as the information behind it. The lawyer alone knows what the earlier work involved. A lawyer who skimmed a draft contract for a client presents a different risk from one who ran that client's litigation for two years, and the agency cannot tell which it faces unless the lawyer says so. A bare statement that the lawyer worked on the matter before supplies a label and not the facts needed to weigh the risk. The lawyer's advice about continuing influence adds something further, because it makes the lawyer say candidly how the old loyalty might surface in the new role.
A consent signed in ignorance records no decision about the risk, because the agency cannot accept a danger it was never shown. The condition of the exception is unmet, and the lawyer stands where she would have stood had she never asked. Signatures and letterhead do not change that, since the rule looks to what the agency knew when it consented. The defect also traces to the lawyer's own silence, which is why the duty to disclose falls on the lawyer: she controls the facts the agency needs.
The writing requirement is a second condition and carries its own weight. An approval that exists only as a spoken remark leaves nothing to examine later, and casual assurances come easily when no one has to open the file or ask hard questions. Requiring that the consent be confirmed in writing makes an official at the agency commit to the decision in a reviewable form. It also gives anyone who later asks whether the agency approved the lawyer's role, and on what terms, a document in place of competing recollections. An approval never confirmed in writing has not satisfied the exception.
Both requirements are met on different facts. A lawyer at another agency gives agency counsel a full account of the earlier work and of the risk of continuing influence, and the agency then signs a written consent permitting her to take part. The agency decided with knowledge and left a record of the decision, so the bar in (d)(2)(i) is lifted. Gideon's problem can be cured the same way: once the general counsel signs a short memorandum approving his role on the account he has already given, the missing writing is supplied.
The two requirements are cumulative, and each failure matches one of the scenes above. A signed form cannot cure ignorance, and a complete disclosure cannot cure the absence of a writing, so an answer that finds one requirement met must still check the other. Stems often have the right official sign after hearing only that the lawyer had some prior involvement, or have the agency hear a full account and then respond with a spoken approval, and each version lacks one element. Even when both requirements are satisfied, only the (d)(2)(i) bar is lifted, and the lawyer's separate duties under Rules 1.7 and 1.9 remain for the next section.