How Disqualification Reaches the Firm

How Disqualification Reaches the Firm

Rule 1.11(b) turns one lawyer's personal disqualification into the firm's problem. When a lawyer is disqualified under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue the representation unless the conditions that follow are met.¹ The default is imputation, and the conditions mark the way out. Both depend on a personal disqualification that already exists, so the first task on any problem is to find out why the lawyer, as an individual, is barred.

Rule 1.11 offers two routes to that personal bar. The first runs through what the lawyer did. A lawyer who participated personally and substantially in a matter as a public officer or employee may not later represent a client in connection with it unless the appropriate government agency gives informed consent, confirmed in writing.² The second runs through what the lawyer learned. A lawyer who holds confidential government information about a person may not represent a private client adverse to that person in a matter where the information could be used to that person's material disadvantage.³ One route looks to the lawyer's role in a particular matter, the other to the information the lawyer carries, and one career can supply either or both.

The firm's exposure follows whichever bar the lawyer carries, and the firm's route to a cure differs for each. A bar based on participation connects to the conditions in paragraph (b). A bar based on confidential information brings its own sentence for the firm inside paragraph (c). Later sections of this chapter take up those conditions. For now, note that the lawyer's history decides which text the firm must satisfy.

Participation in a Specific Matter

Rule 1.11(a)(2) forbids a former public officer or employee to represent a client in connection with a matter in which the lawyer participated personally and substantially, unless the appropriate government agency gives informed consent, confirmed in writing.⁴ The lead-in to paragraph (a) yields to any law that expressly permits the representation, so a lawyer who can point to such a law has a threshold argument to test before the elements are reached.⁵ Paragraph (b) imputes only a disqualification that paragraph (a) creates. The firm's exposure therefore turns on three facts about the lawyer's earlier work: what it was, how directly the lawyer handled it, and how much it mattered.

Public employment creates three dangers that the rule targets. A lawyer handling a government matter might shape it to impress future private employers, might later work to subvert the position taken for the public, or might carry confidences from the job to a private client.⁶ Each danger presupposes that the lawyer did something in a particular, identifiable matter, and that presupposition explains the elements. The rule asks about a matter, not government service in general; about the lawyer's own involvement, not the office's; and about significant involvement, not any contact. Those limits keep the bar aimed at situations where the dangers are realistic, so it does not reach every alumnus of an agency.

The first element is a matter, and Rule 1.11(e) defines it. The definition lists any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter involving a specific party or parties, and it adds any other matter covered by the conflict of interest rules of the appropriate government agency.⁷ The listed items share a specific party: the lawyer took some position, action, or disposition toward identifiable persons or entities. Work on general rules or policy falls outside that definition. A lawyer who proposes, drafts, or enacts rules, or who develops general policy positions, is less likely to curry particular favor with specific private interests, and such activity lies outside the special regulation of conflicts in Rule 1.11(a).⁸

Facts reporting that the lawyer wrote general rules or developed general policy signal that no matter exists. Facts reporting that the lawyer investigated, prosecuted, approved a contract, or handled a claim signal that one does.

The second element is that the lawyer participated personally. The test looks to the lawyer's own involvement, not the office's. The disqualification attaches when the lawyer took part directly in the matter, not merely when the lawyer served in the same governmental office as other officers or employees who handled it.⁹ A deputy in the same prosecutor's office who never opened the file, attended a strategy meeting, or gave advice on it has not participated personally, however much he overheard in the corridor. Shaping a matter, working to undo a position taken in it, and carrying off its confidences all require the lawyer to have been inside the matter. Sharing an employer with the people who were inside it does none of those things.

The third element is that the participation was substantial. One court has defined the term to require involvement of significance to the matter, or involvement that forms a basis for a reasonable appearance of such significance, and it requires more than official responsibility, knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue.¹⁰ Concrete conduct fills in the standard. Court appearances, interviews of clients or witnesses, preparation of litigation documents, and discussions of strategy count, while routinely forwarding a document or taking a purely ministerial action that involved no exercise of discretion does not.¹¹ The Iowa Supreme Court's decision in Sorci points the same way: advising a client, authoring correspondence or reports, signing a pleading, and appearing at a hearing each involve substantial responsibility.¹²

Supervision shows how the elements combine. In Armstrong v. McAlpin, a former SEC official had supervised the agency's original prosecution of the defendants, though not on a day-to-day basis, and then joined a firm that a receiver retained to pursue the same defendants. Without the agency's consent, he was personally disqualified, and the firm faced imputation unless it met the rule's conditions. Two features of that result matter. First, the bar did not depend on his switching sides, because the receiver's pursuit of the defendants ran in the same direction as the SEC's, and the text of Rule 1.11(a)(2) speaks of representing a client in connection with the matter without requiring adversity to the government.¹³ Second, it did not depend on his handling the daily work, because directing a matter is a way of participating in it. Sorci explains why adversity is not the whole story. The court described the bar as preventing the treachery of switching sides, but also as protecting confidential information and removing any suspicion that a lawyer conducted government work in order to acquire future employment.¹⁴ The dividing line therefore runs between taking part in the matter itself, including supervising its course, and merely holding official responsibility for an office that handled it, because official responsibility alone does not make participation substantial.¹⁵

Once the personal bar exists, Rule 1.11(b) carries it into the firm. No lawyer in a firm with which the disqualified lawyer is associated may knowingly undertake or continue the matter unless the rule's conditions are met.¹⁶ A bar that stopped at the individual would be easy to sidestep, because a colleague could handle the matter with the benefit of the disqualified lawyer's knowledge. The conditions that can stop imputation are the subject of the sections that follow.

Two situations leave Rule 1.11(b) with nothing to impute. In the first, the lawyer was never disqualified under paragraph (a), as with the policy drafter above, so the premise of imputation is missing.¹⁷ In the second, the appropriate government agency has given informed consent, confirmed in writing, and the exception built into paragraph (a)(2) removes the lawyer's disqualification.¹⁸ Consent and screening therefore work at different levels. Consent lifts the personal bar, so the firm has no occasion to screen. Screening leaves the personal bar standing and lets the rest of the firm proceed despite it. The rule names the agency as the source of consent, so the new private client's consent does not substitute for it.

Steps two through four decide whether the lawyer is barred, step five decides whether the bar survives, and step six is the first point at which the firm's own conduct matters.

Confidential Government Information

Rule 1.11(c) supplies the second route to a personal bar, and it asks a different question from the one the participation bar asks. A lawyer who has information the lawyer knows is confidential government information about a person, acquired as a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to that person's material disadvantage, except as law may otherwise expressly permit.²¹ Paragraph (a)(2) looks backward at what the lawyer did in a particular matter. Paragraph (c) looks at what the lawyer now knows and about whom. As with participation, the disqualification attaches to the lawyer first, and the firm's exposure follows.

The trigger depends on a defined term, and the rule supplies the definition in its own text. Information is confidential government information only when all three of these conditions hold:²²

1. The information was obtained under governmental authority.
2. When the rule is applied, the government is prohibited by law from disclosing the information to the public or has a legal privilege not to disclose it.
3. The information is not otherwise available to the public.

Each condition screens out a different kind of information. The first ties the bar to what the government's own authority produced, such as records an agency compelled a person to file, so a fact the lawyer picked up through ordinary private channels falls outside it. The second asks whether the law itself restricts the government's disclosure, either by forbidding it or by giving the government a privilege to withhold. The rule fixes the date of that inquiry at the time the rule is applied, so information that was protected when the lawyer left government but has since been released no longer qualifies.²³ The third works as an independent check. Even information the government may not release gives a lawyer no special advantage if the public can obtain it elsewhere, so availability from any other source removes it from the definition.

The definition keeps the rule narrow. It reaches only information the public cannot get anyway, and the material-disadvantage requirement reaches only uses that would actually hurt the person. A lawyer who knows only what anyone could look up remains free to take the matter, while a lawyer who could turn protected government information against the person it concerns does not.

A reader trained on the participation bar will hunt for the words personally and substantially and clear the lawyer when they are missing. That inference is sound only for paragraph (a)(2). The text of paragraph (c) contains no reference to a matter in which the lawyer took part, so a lawyer who never worked on any file involving the person can still hold the person's confidential information, and acquiring it through the job is enough. The qualifier is knowledge. The rule reaches information the lawyer actually has and knows to be confidential government information, so a lawyer who merely worked in the same building and learned nothing about the person holds nothing for the bar to attach to.²⁴

The second difference concerns whose interests the bar protects. The participation bar protects the agency, which is why the agency's informed consent, confirmed in writing, can lift it.²⁵ Under paragraph (c) the party in interest is the person the information concerns, and the rule measures adversity and material disadvantage from that person's position.²⁶ Paragraph (c) contains no consent exception comparable to the one in paragraph (a)(2), and its only opening for the lawyer is a law that expressly permits the representation. The agency is not the protected party, so the agency's view of the matter is not what paragraph (c) asks about.

The two scenes share a lawyer who knows a good deal about the person and a client who wants to use it. What separates them is whether the knowledge is legally protected and unavailable elsewhere, since that decides whether the definition is met. The participation trigger and the information trigger are therefore independent, and the facts may satisfy one while failing the other.

Paragraph (c) also addresses the firm, in its final sentence. A firm with which the disqualified lawyer is associated may undertake or continue the representation only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee from it.²⁷ A later section takes up what that screen requires and how it differs from the conditions that apply to the participation bar. At this point the relevant fact is that the firm's exposure exists only because the lawyer's personal bar exists.

The definition does most of the work in steps one and two. A failure at either point ends the inquiry, because information anyone can obtain is not the kind the rule protects.