Also known as:personally and substantially · personal substantial participation
Written by attorneys · grounded in primary & secondary sources — see below
A standard of lawyer involvement in a matter that triggers disqualification from later representation in the same matter under conflict-of-interest rules applicable to former government lawyers, judges, arbitrators, and mediators. The standard is met when the lawyer's role included direct, hands-on participation such as directing an investigation, drafting complaints or consent orders, reviewing key documents, or interviewing witnesses rather than mere supervisory oversight or peripheral contact.
Sources & Authorities
How it applies
Common Examples
4
Former Agency Lawyer Switches Sides
Pilar Pena led an administrative enforcement action for the state environmental agency against a chemical company for river contamination. After leaving the agency she joined a private firm that the company retained to defend a civil damages suit brought by downstream homeowners over the identical discharge. Because Pena's prior work directing the investigation and appearing at hearings was personal and substantial, she may not represent the company unless the agency gives informed written consent.
In-House Counsel Later Opposes Former Employer
Portia Price served as in-house counsel and personally reviewed all major litigation files and negotiated key settlement agreements for a manufacturing company. After joining a plaintiffs' firm she was asked to represent an injured worker in a product-liability suit against the same company involving facts she had handled while employed there. Because Price's prior responsibility was personal and substantial and she was not screened upon joining the firm, both she and the firm are disqualified from the representation.
Put it into practice
Test Yourself
10
Practice Questions5
· 7 primary sources
Select any source to read its text and confirm it supports the definition.
Cases
Model Codes
Casebooks
Current Government Lawyer Barred From Prior Private Matter
Pamela Phillips represented a pharmaceutical company in private practice by analyzing clinical data and drafting safety submissions to a federal agency. After joining the agency she was assigned to review the same drug's safety profile. Because Phillips participated personally and substantially in the matter while in private practice, she may not continue the agency work unless the agency gives informed written consent.
Former Arbitrator Seeks To Represent Party
Parker Phillips served as arbitrator in a contract dispute between two construction firms and personally conducted hearings and issued rulings on discovery motions. After returning to private practice one of the firms asked him to represent it in related litigation arising from the same contract. Because Phillips participated personally and substantially as arbitrator, he may not accept the representation unless both parties give informed written consent.
Common questions
Frequently Asked
4
What level of involvement satisfies the personal and substantial standard?+
Direct, hands-on work such as directing an investigation, drafting complaints or consent orders, reviewing key documents, or interviewing witnesses meets the standard. Mere supervisory oversight or peripheral contact does not.
Supporting sources
Does screening cure a personally disqualified lawyer's conflict?+
Screening and fee isolation allow the firm to continue representation under Rule 1.11(b) but do not permit the personally disqualified lawyer to participate in the matter. The lawyer herself remains barred absent informed written consent from the appropriate agency.
Supporting sources
When do two proceedings constitute the same matter?+
Proceedings involve the same matter when they arise from the identical underlying facts, parties, and controversy even if different plaintiffs or remedies are involved. The rule focuses on the core dispute rather than the form of relief or identity of the later claimant.
Supporting sources
Must consent be obtained before the lawyer may represent the new client?+
Yes. Informed consent confirmed in writing from the appropriate government agency is required before the lawyer may represent a private client in the same matter. Absence of consent keeps the disqualification in place.
Supporting sources
Professional ResponsibilityConflicts of interest · Lawyers currently or formerly in government serviceMPREFoundational