Working Through a Problem

Rule 1.11(c) works as a four-question checklist, and the questions follow the order of the Rule's three sentences. The first sentence bars a lawyer who knows she holds confidential government information about a person, acquired as a public officer or employee, from representing a private client adverse to that person in a matter where the information could be used to that person's material disadvantage. The second sentence defines the information. The third tells the firm what it must do to keep the work.¹ The Rule reaches the firm as well as the lawyer: it bars a firm with which the former government lawyer is associated from undertaking or continuing an adverse representation when the information could be used to the person's material disadvantage.² The first three questions decide whether the lawyer is personally barred, and the fourth decides whether the firm may proceed anyway. A fact pattern can fail at any question, and when it does the analysis stops, because each later question assumes the earlier answers were yes.

Exam Analysis Steps

Ask the questions in the order the Rule states its parts, and put the first two to each item of information the lawyer holds:

Did the lawyer acquire the information while serving as a public officer or employee?
Is each item confidential government information? It must have been obtained under governmental authority. At the time the Rule is applied, the government must be legally prohibited from disclosing it or hold a legal privilege not to. It must not be otherwise available to the public. And the lawyer must know it to be of that kind.
Is the private client adverse to the person the information concerns, and could the information be used to that person's material disadvantage in this matter? Treat the second point as a question of possible use, not actual use.
If the lawyer is barred, has the firm timely screened the lawyer from any participation in the matter and apportioned the lawyer no part of the fee? Do not ask about notice, because paragraph (c) requires none.

Fact patterns most often set their traps at the second and fourth questions. At the second, a stem may describe a lawyer who knows a great deal about the adverse party. The task is to sort what she knows into items that meet the definition and items that do not, and to remember that legal status is measured when the Rule is applied. At the fourth, a stem may recite several of the firm's safeguards. The task is to confirm that both of paragraph (c)'s conditions are present and to resist adding a third. The Rule also opens with the phrase 'except as law may otherwise expressly permit,' and other law, covered in the preceding section, runs alongside the checklist without being displaced by it.

Hypothetical Illustration

A lawyer at a state securities commission used the commission's subpoena power to obtain a broker's non-public financial records, which a statute forbids the commission to disclose. He later joins a private firm, and a client asks the firm to sue the broker over the same dealings. The records came to him as a public employee, so the first question is yes. They were obtained under governmental authority, the statute bars their disclosure, and they appear nowhere in public, so the second question is yes. The client would be suing the broker, and records of the broker's finances could be used to the broker's material disadvantage in a suit over those dealings, so the third question is yes and he is personally barred. The firm may proceed only if it screens him in time and apportions him no part of the fee. It owes no notice to the commission or to the broker.

The two lawyers share a former agency, an adverse party, and the nature of the client's suit. They differ in one fact: whether what the lawyer holds is protected from the public. That fact decides the second question. Had the second lawyer learned the same facts only from the commission's subpoenaed files, which the statute forbids it to release, the second question would have come out the other way, because paragraph (c) measures the government's legal bar when the Rule is applied.³ Her clean result under (c) also leaves her overall position open. If she participated personally and substantially in the commission's matter against the broker, paragraph (a) raises a separate question with its own trigger and its own route through agency consent.⁴

Three distinctions account for most of the points an examiner can attach to these facts, and each follows from the question the relevant paragraph asks:

Paragraph (c) disqualifies a lawyer for what she knows, so it can apply even if she never worked on any matter involving the person. Paragraph (a) disqualifies a lawyer for what she did, namely participating personally and substantially in a particular matter.⁵
Agency consent lifts a participation-based disqualification under paragraph (a), which permits the representation when the appropriate government agency gives its informed consent, confirmed in writing. Paragraph (c) contains no consent clause and protects the person the information concerns, so an agency's approval cures nothing under it.⁶
Notice to the agency is a condition the Rule attaches to participation-based conflicts, as the earlier section on notice explained. Paragraph (c) lists only the screen and the fee bar, so it requires notice to neither the agency nor the person.⁷

Working Through a Problem

Endnotes8