Continuing Confidentiality Duty

Continuing Confidentiality Duty

A former government lawyer who clears the matter bar is still not free of everything she learned in office. Model Rule 1.11(a) gives her two commands, and the matter bar is the second. The first fits in a single clause: the lawyer “is subject to Rule 1.9(c).”¹ That cross-reference carries the confidentiality rule for former clients into public service and treats the government as the former client. Together the two commands set the basic standard. A former public officer or employee may not use or reveal confidential information relating to the representation of the former government client, and may not represent a client in connection with a matter in which she participated personally and substantially unless the appropriate government agency gives its informed consent, confirmed in writing.²

The duty continues because the public responsibility continues. A lawyer who takes on public responsibilities assumes duties of fidelity and confidentiality to the public, and those duties outlast the job.³ Rule 1.11(a) therefore prevents her from abusing confidential information obtained in government employment, and it forbids her to “purloin the confidences that were received in public service to promote the interests of a private client.”⁴

Sorci shows that courts count confidential information among the things at stake when a former government lawyer changes sides. The Iowa Supreme Court affirmed the disqualification of a former assistant county attorney. It explained that the prohibition on accepting a representation in a matter the lawyer handled in government guards against “the treachery of switching sides,” protects confidential information from being jeopardized, and removes any suspicion that she conducted government work to win future employment. The court added that public trust in the legal system would suffer if a lawyer could play different roles for different parties in the same ongoing matter, especially when the earlier role carried significant public responsibilities.⁵ Confidentiality is thus one of several purposes behind the matter bar. Paragraph (a)(1) isolates that one concern and applies it without asking whether the lawyer handled a matter.

The two commands ask different questions. The matter bar asks whether the government work was a matter, whether the lawyer participated in it personally and substantially, and whether the new engagement is connected to it. The confidentiality duty asks what information the lawyer holds from representing the government, and whether she is about to use or reveal it. Three consequences follow. First, the duty reaches information from any representation of the government, because paragraph (a)(1) names no matter. Second, an analysis that ends in “no matter” or “no substantial participation” settles paragraph (a)(2) and leaves paragraph (a)(1) untouched. Third, the agency’s informed consent appears in paragraph (a)(2) as consent to the representation, while paragraph (a)(1) refers only to Rule 1.9(c).⁶

The two lawyers differ in one respect: whether the new work calls on what each learned as the agency’s lawyer. For Marchetti it does, so the duty binds him even though the matter bar is silent. The duty regulates information, not engagements; the bar on representing a client sits in paragraph (a)(2). A former government lawyer who takes private work unrelated to anything handled in government, and who never uses or reveals confidential government information in it, is untouched by paragraph (a)(1).

Rule 1.11(c) addresses a neighboring problem. It similarly prohibits a law firm with which a former government officer or employee is associated from undertaking or continuing a representation adverse to a person about whom the lawyer obtained confidential government information, if that information could be used to that person’s material disadvantage.⁷ Paragraph (a)(1) protects the government client’s information, while subsection (c) looks to a different party: the person the information is about.