Concept
Related Government-Lawyer Rules
Current government lawyer: matters handled in private practice
Related Government-Lawyer Rules
Three provisions of Rule 1.11 use nearly identical words, and students routinely cite the wrong one. The first is the prior-participation bar in (d)(2)(i). A lawyer who now serves 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 informed consent, confirmed in writing.1 The second is Rule 1.11(a), which restricts the lawyer who has left public service.2 The third is (d)(2)(ii), which bars a current public lawyer from negotiating for private employment with anyone involved in a matter the lawyer is handling.3
The three rules differ in when and where the lawyer's work happened. The bar in (d)(2)(i) looks back from a government job to earlier private work. Rule 1.11(a) looks back from private practice, or from another government post, to earlier public work.4 The negotiation prohibition in (d)(2)(ii) looks at the present: the lawyer is on the matter now and is talking to someone about a job. The first step on any problem is therefore to fix when and where each piece of the lawyer's work took place, and the choice of rule follows from that. An answer under one rule does not settle the question under another.
Former Government Lawyers
Rule 1.11(a) governs a lawyer who “has formerly served as a public officer or employee of the government,” and it gives way only where law expressly permits what the rule would forbid.5 It does two things. It forbids the lawyer to use or reveal confidential information relating to the representation of a former government client, and it forbids the lawyer to represent a client, in private practice or in another government role, in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee. The agency's informed consent, confirmed in writing, lifts the second bar.6 The confidentiality half works through Rule 1.9(c).7
Set beside the bar in (d)(2)(i), Rule 1.11(a) is a mirror image. Under (a) the earlier work was public, and the later work is private or in a different government post. Under (d)(2)(i) the earlier work was private, and the lawyer now works in government. Because (a) covers representation “in another government practice,” a lawyer who moves from one agency to another stays under (a) as to the first agency's matters, and the fact that the new job is public does not move the case to (d)(2)(i).8
The direction of travel changes the danger the rule guards against. A lawyer who was intimately involved in adopting a policy, making a decision, or advocating a position on a discrete matter involving identifiable parties may not later turn that public work to a private end. Nor may the lawyer use confidences received in public service for a private client. The rule also stops a lawyer from exploiting a public position to look attractive to future private employers.9 In Sorci, the Iowa Supreme Court applied the corresponding prohibition to a former assistant county attorney. It named the interests at stake: preventing “the treachery of switching sides” in an ongoing matter, protecting confidential information, and removing the suspicion that a lawyer handled government work with an eye to later employment. It also observed that public trust suffers when one lawyer plays different roles for different parties in the same matter.10 Each of those dangers runs from the public role into the private one.
Sorci also shows how little it takes to count as substantial participation. The court said that “[a]dvising a client, authoring correspondence or reports, signing a pleading, and appearing at a hearing each involve substantial responsibility.”11 The limiting words in (a) are the ones the earlier sections met under (d)(2)(i). Rule 1.11(a) reaches a matter in which the lawyer participated personally and substantially, and (d)(2)(i) uses the same phrase.12 The consent mechanism is also the same: in both rules the appropriate government agency must give informed consent, confirmed in writing. What differs is the surrounding duty. A former government lawyer carries a continuing confidentiality duty to the government as a former client. A current government lawyer remains under the conflict rules, so she may not represent two clients who are directly adverse and may not proceed when there is a significant risk that her responsibilities to others, or her own interests, would materially limit the representation.13
The result is the same if Gabriel moves to a different agency instead of a firm, because the rule covers representation in another government role as well as in private practice. The controlling fact is that the participation occurred while he served the government.
Because the two rules share their vocabulary, an answer can identify a matter and substantial participation correctly and still cite the wrong provision. The remedy is to locate the earlier participation before applying either rule.
Negotiating for Private Employment
Rule 1.11(d)(2) holds a second prohibition beside the prior-participation bar. A lawyer currently serving as a public officer or employee may not “negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially.” The one exception is for a law clerk to a judge, other adjudicative officer, or arbitrator, who may negotiate as Rule 1.12(b) permits and subject to the conditions that rule states.16 The two prohibitions sit in the same paragraph and share vocabulary, which is why students merge them. They ask different questions about different moments in a lawyer's career.
The bar in (d)(2)(i) looks backward. It asks what the lawyer did in private practice before taking the public job, and it applies only if the lawyer worked on the very same matter personally and substantially.17 The negotiation prohibition looks forward. It asks with whom the lawyer is discussing a future job, and it applies when that person is involved in a matter the lawyer is handling now in a public role. A lawyer can therefore violate (d)(2)(ii) without ever having represented anyone in the matter, because the only link between the lawyer and the matter is the official work on it. The two paragraphs also differ in how they can be relaxed. The bar in (d)(2)(i) yields to the appropriate agency's informed consent, confirmed in writing. The text of (d)(2)(ii) has no consent clause and states a single exception, for law clerks.18
The reason for a separate prohibition lies in the lawyer's own incentives. The risk is manifest that a lawyer serving as a government officer or employee will be improperly influenced when she is seeking employment with a private person or entity that has an interest in the matter she is handling.19 The rule therefore forbids the negotiation itself while the lawyer holds the matter. The influence here comes from a job the lawyer hopes to win, not from loyalty built through past work.
Two parts of the text limit the prohibition. The first concerns the other side of the conversation, which must be a person involved in the matter “as a party or as lawyer for a party,” so an approach to the party's own lawyer is covered along with an approach to the party.20 The second concerns the lawyer's role, which must be one of participating personally and substantially, the same words that limit (d)(2)(i). The text is also written in the present tense, since it reaches a matter in which the lawyer “is participating.”21 A current government lawyer also remains under Rule 1.7, which looks to whether the lawyer's personal interests would materially limit the representation.22
When an exam stem has a lawyer talking to a firm about a job, ask first whether the lawyer is handling that firm's client's matter right now in a public role.
The exception exists because a flat ban would leave a clerk unable to seek work from any firm appearing in a matter the clerk is helping decide. Rule 1.12(b) instead requires the clerk to notify the judge, adjudicator, or arbitrator.23 The exception covers clerks to adjudicators, so an agency staff lawyer handling a permit proceeding cannot rely on it. To sort a public lawyer's problem, look at the lawyer's connection to the matter. Earlier private work on the matter points to (d)(2)(i), and a present job search with someone involved in the matter points to (d)(2)(ii).