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Rule 1.11. SpecialConflicts of Interest for Former and Current Government Employees.

(a) Except as law may otherwise expressly permit, a lawyer who hasformerly served as a public officer or employee of the government:

(a)(1) issubject to Rule 1.9(c); and

(a)(2) shallnot otherwise represent a client in connection with a matter in which thelawyer participated personally and substantially as a public officer oremployee, unless the appropriate government agency gives its informed consent,confirmed in writing, to the representation.

(b) When a lawyer is disqualified from representation underparagraph (a), no lawyer in a firm with which that lawyer is associated mayknowingly undertake or continue representation in such a matter unless:

(b)(1) thedisqualified lawyer is timely screened from any participation in the matter andis apportioned no part of the fee therefrom; and

(b)(2) writtennotice is promptly given to the appropriate government agency to enable it toascertain compliance with the provisions of this Rule.

(c) Except as law may otherwise expressly permit, a lawyer havinginformation that the lawyer knows is confidential government information abouta person acquired when the lawyer was a public officer or employee may notrepresent a private client whose interests are adverse to that person in amatter in which the information could be used to the material disadvantage ofthat person. As used in this Rule, the term "confidential governmentinformation" means information that has been obtained under governmentalauthority and which at the time the Rule is applied, the government isprohibited by law from disclosing to the public or has a legal privilege not todisclose and which is not otherwise available to the public. A firm with whichthat lawyer is associated may undertake or continue representation in thematter only if the disqualified lawyer is screened from any participation inthe matter and is apportioned no part of the fee therefrom.

(d) Except as law may otherwise expressly permit, a lawyer servingas a public officer or employee:

(d)(1) issubject to Rules 1.7 and 1.9; and

(d)(2) shallnot:

(d)(2)(i)participate in a matter in which the lawyer participated personally andsubstantially while in private practice or nongovernmental employment, unlessthe appropriate government agency gives its informed consent, confirmed inwriting; or

(d)(2)(ii) negotiate forprivate employment with any person who is involved as a party or as lawyer fora party in a matter in which the lawyer is participating personally andsubstantially, except that a lawyer serving as a law clerk to a judge, otheradjudicative officer or arbitrator may negotiate for private employment aspermitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).

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

(e)(1) any judicial or otherproceeding, application, request for a ruling or other determination, contract,claim, controversy, investigation, charge, accusation, arrest or other particularmatter involving a specific party or parties; and

(e)(2) anyother matter covered by the conflict of interest rules of the appropriategovernment agency.

Comment

[1] A lawyer, who has served or is currently serving as a publicoffice or employee is personally subject to the Rules of Professional Conduct,including the prohibition against concurrent conflicts of interest stated inRule 1.7 In addition, such a lawyer may be subject to statutes and governmentregulations regarding conflicts of interest. Such statutes and regulations maycircumscribe the extent to which the government agency may give consent underthis Rule. See Rule 1.0(f) for the definition of informed consent.

[2] Paragraphs (a)(1), (a)(2) and (d)(1)restate the obligations of an individual lawyer who has served or is currentlyserving as an officer or employee of the government toward a former governmentor private client. Rule 1.10 is not applicable to the conflicts of interestaddressed by this Rule. Rather, paragraph (b) sets forth a special imputationrule for former government lawyers that provides for screening and notice.Because of the special problems raised by imputation within a governmentagency, paragraph (d) does not impute the conflicts of a lawyer currentlyserving as an officer or employee of the government to other associatedgovernment officers or employees, although ordinarily it will be prudent toscreen such lawyers.

[3] Paragraphs (a)(2) and (d)(2) apply regardless of whether alawyer is adverse to a former client and are thus designed not only to protectthe former client, but also to prevent a lawyer from exploiting public officefor the advantage of another client. For example, a lawyer who has pursued aclaim on behalf of the government may not pursue the same claim on behalf of alater private client after the lawyer has left government service, except whenauthorized to do so by the government agency under paragraph (a). Similarly, alawyer who has pursued a claim on behalf of a private client may not pursue theclaim on behalf of the government, except when authorized to do so by paragraph(d). As with paragraphs (a)(1) and (d)(1), Rule 1.10is not applicable to the conflicts of interest addressed by these paragraphs.

[4] This Rule represents a balancing of interests. On the onehand, where the successive clients are a government agency and another client,public or private, the risk exists that power ordiscretion vested in that agency might be used for the special benefit of theother client. A lawyer should not be in a position where benefit to the otherclient might affect performance of the lawyer's professional functions onbehalf of the government. Also, unfair advantage could accrue to the otherclient by reason of access to confidential government information about theclient's adversary obtainable only through the lawyer's government service. Onthe other hand, the rules governing lawyers presently or formerly employed by agovernment agency should not be so restrictive as to inhibit transfer of employmentto and from the government. The government has a legitimate need to attractqualified lawyers as well as to maintain high ethical standards. Thus a formergovernment lawyer is disqualified only from particular matters in which thelawyer participated personally and substantially. The provisions for screeningand waiver in paragraph (b) are necessary to prevent the disqualification rulefrom imposing too severe a deterrent against entering public service. Thelimitation of disqualification in paragraphs (a)(2) and (d)(2) to mattersinvolving a specific party or parties, rather than extending disqualificationto all substantive issues on which the lawyer worked, serves a similarfunction.

[5] When a lawyer has been employed by one government agency and thenmoves to a second government agency, it may be appropriate to treat that secondagency as another client for purposes of this Rule, as when a lawyer isemployed by a city and subsequently is employed by a federal agency. However,because the conflict of interest is governed by paragraph (d), the latteragency is not required to screen the lawyer as paragraph (b) requires a lawfirm to do. The question of whether two government agencies should be regardedas the same or different clients for conflict of interest purposes is beyondthe scope of these Rules. See Rule 1.13 Comment [6].

[6] Paragraphs (b) and (c) contemplate a screening arrangement.See Rule 1.0(o) (requirements for screening procedures). These paragraphsdo not prohibit a lawyer from receiving a salary or partnership shareestablished by prior independent agreement, but that lawyer may not receivecompensation directly relating the attorney's compensation to the fee in thematter in which the lawyer is disqualified.

[7] Notice, including a description of the screened lawyer's priorrepresentation and of the screening procedures employed, generally should begiven as soon as practicable after the need for screening becomes apparent.

[8] Paragraph (c) operates only when the lawyer in question hasknowledge of the information, which means actual knowledge; it does not operatewith respect to information that merely could be imputed to the lawyer.

[9] Paragraphs (a) and (d) do not prohibit a lawyer from jointlyrepresenting a private party and a government agency when doing so is permittedby Rule 1.7 and is not otherwise prohibited by law.

[10] For purposes of paragraph (e) of this Rule, a"matter" may continue in another form. In determining whether twoparticular matters are the same, the lawyer should consider the extent to whichthe matters involve the same basic facts, the same or related parties, and thetime elapsed.

 

 

Effective May 1, 2019