Rules 1.7 and 1.9 Still Apply

Rules 1.7 and 1.9 Still Apply

Clearing the special bar on prior private matters finishes only half of a government lawyer's conflict analysis. Rule 1.11(d) works in two layers, and the lower one is the layer students forget. Paragraph (d)(1) provides that a lawyer currently serving as a public officer or employee "is subject to Rules 1.7 and 1.9."¹ Paragraph (d)(2) then adds the special bars covered in the earlier sections, including the prior-participation bar of (d)(2)(i). A current government lawyer therefore carries the ordinary conflict duties that bind every lawyer, plus the extra restrictions of the special rule. Satisfying the special rule, whether by staying out of the matter or by obtaining agency consent, leaves the ordinary duties exactly where they were.

Those ordinary duties keep their usual content in public service. Under the general conflict standards, a government lawyer may not represent two clients who are directly adverse to each other. The lawyer also may not proceed when there is a significant risk that responsibilities to other or former clients, or the lawyer's own interests, would materially limit the representation.² The former-client rule adds a second prohibition: the 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.³ The first duty comes from Rule 1.7 and the second from Rule 1.9. Both operate whether or not the lawyer ever triggers the prior-participation bar.

The two layers coexist because each protects a different person. The prior-participation bar shields the public from private loyalty that follows a lawyer into a government decision, and the agency, which represents the public interest, is the party entitled to waive that protection by consenting. Rules 1.7 and 1.9 protect the clients themselves. Current and former private clients are owed loyalty and confidentiality, and those duties belong to the client who is owed them. An agency cannot give up a protection that belongs to someone else, so its consent speaks to the public's interest and says nothing about whether a former client has been wronged. Without the second layer, a lawyer who obtained agency consent could be assigned to the very matter handled for a private client and could then work against that client in it. The reverse also holds: a former client's approval does not satisfy (d)(2)(i), because that consent belongs to the agency.

The triggers of the two layers differ as well, so one can apply when the other does not. The special bar asks whether the lawyer participated personally and substantially in the same matter while in private practice, and it applies even when the government's position now matches the position the old client took. Rule 1.9 asks whether the lawyer earlier represented a client in the same or a substantially related matter and whether the government's position is adverse to that client. It can therefore reach an assignment in a related but different proceeding, where (d)(2)(i) has nothing to say, and it stays silent when the government's position lines up with the former client's.

An exam stem that recites a signed, fully informed agency consent invites the conclusion that the lawyer may proceed. That conclusion stops one layer too soon.

A favorable result at step 2 does not excuse steps 3 and 4. The lawyer may proceed only after clearing every hurdle that applies. The layers are also not interchangeable: agency consent at step 2 cannot stand in for the former client's consent at step 3, and the former client's consent cannot stand in for the agency's.