The Former Government Lawyer Bar

Former Government Lawyers

The Former Government Lawyer Bar

Suppose a staff lawyer at a government agency signs the complaint in an enforcement action against a contractor. Two years later she joins a private firm, and the contractor asks the firm to defend that same action. She may not take the engagement unless the agency consents. Model Rule 1.11(a) supplies the reason: a former public officer or employee “shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.”¹

That sentence has three working parts. The first is a matter, which means a discrete matter involving identifiable parties rather than government work in general.² The second is the lawyer’s personal and substantial participation in that matter. The third is agency consent, the only exit the rule provides. The lead-in names the lawyers covered, “a lawyer who has formerly served as a public officer or employee of the government,” and defers to other law: the whole provision applies “[e]xcept as law may otherwise expressly permit.”³ An express legal permission can therefore displace the rule, but silence in other law cannot.

The rule targets three misuses of a public post. It prevents a lawyer from exploiting a public position to become more attractive to future private employers, from later seeking to subvert the decision made or position advocated in public service, and from abusing confidential information obtained in government employment.⁴ The first misuse works through incentive. If a lawyer could leave office and take a private engagement in the very matter handled there, every decision made in office would carry a temptation to please those who might later do the hiring. The second turns the lawyer’s own work against the public: a lawyer who advocated one position for the government could return as a paid opponent of it. The third works through information, which could leave the building with the lawyer and go to work for a private client. The same rule separately bars using or revealing confidential information relating to the representation of the former government client, so that duty and the matter bar apply side by side.⁵

The Iowa Supreme Court applied these concerns in Sorci, affirming a disqualification that rested on a former assistant county attorney’s past governmental duties. “[A]dvising a client, authoring correspondence or reports, signing a pleading, and appearing at a hearing,” the court said, “each involve substantial responsibility.” It explained that barring a lawyer from a matter over which the lawyer had substantial responsibility in government prevents “the treachery of switching sides” in an ongoing matter, keeps confidential information from being jeopardized, and removes any suspicion that the lawyer did government work with an eye to future employment. Public trust in the legal system would also suffer if a lawyer could play different roles and represent different parties in the same ongoing matter, especially when the earlier role carried significant public responsibilities.⁶

Switching sides is the paradigm case, but the bar does not require it. In Armstrong v. McAlpin, a former SEC official who had supervisory authority over the prosecution of defendants for misappropriating investment-company funds joined a firm that a court-appointed receiver had hired to collect the resulting judgment from those same defendants. The receiver was not formally adverse to the SEC, yet the lawyer could not work on that representation without the agency’s consent. The rule looks to the lawyer’s earlier public role in the matter, not to the posture of the new client, so a client whose interests run alongside the government’s still triggers the bar. Consent lifts it. Had the SEC agreed in writing, after learning of the official’s earlier role and the planned representation, the rule would have posed no obstacle.⁷ The agency decides because it occupies the position of the former client, and the word “informed” matters because an agency cannot weigh a risk it has not been told about.

The word “participated” reaches decision-makers as well as advisers. A lawyer who was intimately involved in adopting a policy, making a decision, or advocating a position for the government in a discrete matter involving identifiable parties may not later convert that public work to a private end or use the confidences received in public service to promote a private client.⁸ The prohibition follows the lawyer into any later representation, whether in private practice or in another government post.⁹ It is not meant to keep lawyers out of public service. Comment 4 to Rule 1.11 says the special provisions for screening or waiver of the conflict for former public officers and government employees “are necessary to prevent the disqualification rule from imposing too severe a deterrent against entering public service.”¹⁰ The bar therefore attaches to a particular matter, requires personal and substantial participation, and yields to agency consent.

Those features supply the order of analysis for a fact pattern. One court opinion states the essential elements of a violation of Rule 1.11(a): a government lawyer participates as a public employee in a matter, both personally and substantially, and then leaves government and accepts employment in another matter that is the same as, or substantially related to, the original matter.¹¹ Add the consent exception, and four questions result.

The first two questions look backward at what the lawyer did in office. The third compares that work with the new engagement, and the fourth asks whether the agency has released the lawyer. If the government work involved no discrete matter, or the lawyer’s part in it was not personal and substantial, the bar never attaches and the later questions do not arise. Most fact patterns therefore turn first on the word “matter,” and the next section takes it up.