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Rule 1.11. Special Conflicts of Interest for Former andCurrent Government Employees.

(a) Except as law may otherwiseexpressly permit, a lawyer who has formerly served as a public officer oremployee of the government:

(a)(1) is subject to Rule 1.9(c); and

(a)(2) shall not otherwise represent aclient in connection with a matter in which the lawyer participated personallyand substantially as a public officer or employee, unless the appropriategovernment agency gives its informed consent, confirmed in writing, to therepresentation.

(b) When a lawyer is disqualifiedfrom representation under paragraph (a), no lawyer in a firm with which thatlawyer is associated may knowingly undertake or continue representation in sucha matter unless:

(b)(1) the disqualified lawyer is timelyscreened from any participation in the matter and is apportioned no part of thefee therefrom; and

(b)(2) written notice is promptly givento the appropriate government agency to enable it to ascertain compliance withthe provisions of this Rule.

(c) Except as law may otherwiseexpressly permit, a lawyer having information that the lawyer knows isconfidential government information about a person acquired when the lawyer wasa public officer or employee may not represent a private client whose interestsare adverse to that person in a matter in which the information could be usedto the material disadvantage of that person. As used in this Rule, the term"confidential government information" means information that has beenobtained under governmental authority and which at the time the Rule isapplied, the government is prohibited by law from disclosing to the public orhas a legal privilege not to disclose and which is not otherwise available tothe public. A firm with which that lawyer is associated may undertake orcontinue representation in the matter only if the disqualified lawyer isscreened from any participation in the matter and is apportioned no part of thefee therefrom.

(d) Except as law may otherwiseexpressly permit, a lawyer serving as a public officer or employee:

(d)(1) is subject to Rules 1.7 and 1.9;and

(d)(2) shall not:

(d)(2)(i) participate in a matter inwhich the lawyer participated personally and substantially while in privatepractice or nongovernmental employment, unless the appropriate governmentagency gives its informed consent, confirmed in writing; or

(d)(2)(ii) negotiate for private employment with any person who isinvolved as a party or as lawyer for a party in a matter in which the lawyer isparticipating personally and substantially, except that a lawyer serving as alaw clerk to a judge, other adjudicative officer or arbitrator may negotiatefor private employment as permitted by Rule 1.12(b) and subject to theconditions stated in Rule 1.12(b).

(e) As used in this Rule, theterm "matter" includes:

(e)(1) any judicial or other proceeding, application, request fora ruling or other determination, contract, claim, controversy, investigation,charge, accusation, arrest or other particular matter involving a specificparty or parties; and

(e)(2) any other matter covered by theconflict of interest rules of the appropriate government agency.

Comment

[1] A lawyer, who has served oris currently serving as a public office or employee is personally subject tothe Rules of Professional Conduct, including the prohibition against concurrentconflicts of interest stated in Rule 1.7 In addition, such a lawyer may besubject to statutes and government regulations regarding conflicts of interest.Such statutes and regulations may circumscribe the extent to which thegovernment agency may give consent under this Rule. See Rule 1.0(f) for thedefinition of informed consent.

[2] Paragraphs (a)(1), (a)(2) and (d)(1) restate the obligations of an individuallawyer who has served or is currently serving as an officer or employee of thegovernment toward a former government or private client. Rule 1.10 is notapplicable to the conflicts of interest addressed by this Rule. Rather,paragraph (b) sets forth a special imputation rule for former governmentlawyers that provides for screening and notice. Because of the special problemsraised by imputation within a government agency, paragraph (d) does not imputethe conflicts of a lawyer currently serving as an officer or employee of thegovernment to other associated government officers or employees, althoughordinarily it will be prudent to screen such lawyers.

[3] Paragraphs (a)(2) and (d)(2)apply regardless of whether a lawyer is adverse to a former client and are thusdesigned not only to protect the former client, but also to prevent a lawyerfrom exploiting public office for the advantage of another client. For example,a lawyer who has pursued a claim on behalf of the government may not pursue thesame claim on behalf of a later private client after the lawyer has leftgovernment service, except when authorized to do so by the government agencyunder paragraph (a). Similarly, a lawyer who has pursued a claim on behalf of aprivate client may not pursue the claim on behalf of the government, exceptwhen authorized to do so by paragraph (d). As with paragraphs (a)(1) and (d)(1), Rule 1.10 is not applicable to theconflicts of interest addressed by these paragraphs.

[4] This Rule represents abalancing of interests. On the one hand, where the successive clients are agovernment agency and another client, public or private, the risk exists that power or discretion vested in that agency mightbe used for the special benefit of the other client. A lawyer should not be ina position where benefit to the other client might affect performance of thelawyer's professional functions on behalf of the government. Also, unfairadvantage could accrue to the other client by reason of access to confidentialgovernment information about the client's adversary obtainable only through thelawyer's government service. On the other hand, the rules governing lawyerspresently or formerly employed by a government agency should not be sorestrictive as to inhibit transfer of employment to and from the government.The government has a legitimate need to attract qualified lawyers as well as tomaintain high ethical standards. Thus a former government lawyer isdisqualified only from particular matters in which the lawyer participatedpersonally and substantially. The provisions for screening and waiver inparagraph (b) are necessary to prevent the disqualification rule from imposingtoo severe a deterrent against entering public service. The limitation ofdisqualification in paragraphs (a)(2) and (d)(2) to matters involving aspecific party or parties, rather than extending disqualification to allsubstantive issues on which the lawyer worked, serves a similar function.

[5] When a lawyer has beenemployed by one government agency and then moves to a second government agency,it may be appropriate to treat that second agency as another client forpurposes of this Rule, as when a lawyer is employed by a city and subsequentlyis employed by a federal agency. However, because the conflict of interest isgoverned by paragraph (d), the latter agency is not required to screen thelawyer as paragraph (b) requires a law firm to do. The question of whether twogovernment agencies should be regarded as the same or different clients forconflict of interest purposes is beyond the scope of these Rules. See Rule 1.13Comment [6].

[6] Paragraphs (b) and (c)contemplate a screening arrangement. See Rule 1.0(m) (requirements forscreening procedures). These paragraphs do not prohibit a lawyer from receivinga salary or partnership share established by prior independent agreement, butthat lawyer may not receive compensation directly relating the attorney'scompensation to the fee in the matter in which the lawyer is disqualified.

[7] Notice, including a descriptionof the screened lawyer's prior representation and of the screening proceduresemployed, generally should be given as soon as practicable after the need forscreening becomes apparent.

[8] Paragraph (c) operates onlywhen the lawyer in question has knowledge of the information, which meansactual knowledge; it does not operate with respect to information that merelycould be imputed to the lawyer.

[9] Paragraphs (a) and (d) do notprohibit a lawyer from jointly representing a private party and a governmentagency when doing so is permitted by Rule 1.7 and is not otherwise prohibitedby law.

[10] For purposes of paragraph(e) of this Rule, a "matter" may continue in another form. Indetermining whether two particular matters are the same, the lawyer shouldconsider the extent to which the matters involve the same basic facts, the sameor related parties, and the time elapsed.

 

Effective November 1, 2017