Concept
Why Screening Is Allowed
Imputation to the new firm and screening
Why Screening Is Allowed
Rule 1.10(a) treats a firm as one repository of confidences: the knowledge of one lawyer is imputed to every other lawyer in the firm, so information held by one is regarded as accessible to all.1 Rule 1.11 departs from that baseline for former government lawyers. 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 the person's material disadvantage, but the lawyer's firm may undertake or continue the matter only if the lawyer is timely screened from any participation and apportioned no part of the fee.2 Rule 1.11(b) states the same cure in general terms: a firm may undertake or continue a matter only if the disqualified lawyer is screened from any participation and apportioned no part of the fee.3 In both cases the firm avoids imputation by walling the lawyer off.4
The recruitment rationale
The court in Nemours Foundation v. Gilbane, Aetna, Federal Insurance Co. explained that the Rules, unlike the Code, sanction a screening mechanism in appropriate circumstances and refer specifically to former government attorneys. The policy behind Rule 1.11, the court said, is to enable the government to attract qualified lawyers and to prevent the disqualification rule from imposing too severe a deterrent against entering public service.5 Comment 4 to Rule 1.11 makes the same point: the special provisions for screening or waiver of the conflict “are necessary to prevent the disqualification rule from imposing too severe a deterrent against entering public service.”6
The deterrent works through the lawyer's next job. If hiring a former government lawyer disqualified the whole firm from every related matter, fewer firms would hire one, and a lawyer weighing a public post would count that loss against it. Critics of the Code's firm-wide rule raised exactly this concern, that it may unduly restrict the private employment opportunities of government lawyers and thereby impair the government's ability to attract competent attorneys.7 A screen removes the problem by keeping the lawyer away from the matter while leaving the firm free to take it.
Nemours also set the screen within a change of philosophy. In the section titled “Lawyers Moving Between Firms,” the court read the drafters of the Rules as adopting a functional analysis of vicarious disqualification. They strongly rejected the rigid formalism underlying Canon 9's injunction against an “appearance of impropriety,” and they balanced a former client's expectation of confidentiality against a client's interest in choosing counsel and the mobility of lawyers between private firms.8 That passage concerns moves between private firms, so its application to government lawyers is by analogy. Under a functional analysis, the question is whether confidences stay protected, and an abstract worry about how the arrangement looks does not answer it.
The objection from appearances
The strongest case against screening appears in a separate opinion in Armstrong v. McAlpin, decided under the Code. The majority applied a limited standard for disqualification, under which the threat of taint was the primary ground. The separate opinion would have disqualified the firm even under that standard, and it would have applied the Code's rule requiring disqualification of the former government attorney's firm as written.9
Its central argument concerned public perception. The public, it said, will understandably see an appearance of impropriety when a firm is allowed to continue because of an assurance that the former government lawyer and his partners will not discuss the case. The public will also justifiably perceive impropriety whenever a government lawyer handles a matter and the firm he later joins is not disqualified from a substantially related matter. That result leaves the lawyer open to the charge that his action as a public legal officer might have been influenced by the hope of later employment to uphold what he had done.10 The opinion conceded that the question is one on which reasonable minds may differ, but it would have kept the Code as written until concrete evidence of adverse consequences supplied grounds for changing it.11
How the Rule answers the objection
The Model Rules take the other side of that question, and they answer the objection with conditions instead of denying the risk. The screen must be timely, so that the lawyer is kept from any participation in the matter, and the lawyer must receive no part of the fee.12 One version of the rule adds a check from outside the firm: the firm may proceed if the lawyer is screened and apportioned no part of the fee and written notice is promptly given to the appropriate government agency “to enable it to ascertain compliance with the provisions of this rule.”13 Rule 1.11 also remains enforceable through professional discipline, and it sits beside government ethics statutes, often enforced by criminal penalties, that may restrain a former government employee further.14 The appearance argument meets a separate answer: Nemours treated Canon 9's appearance-of-impropriety injunction as the kind of rigid formalism the Rules strongly reject.15
On an exam, identify the governing standard before applying it. If the stem points to the Model Rules, ask whether the screen was timely, whether the lawyer shares in the fee, and whether the agency received any notice the applicable provision requires. A firm that meets the conditions proceeds even over an objection about appearances. If the stem points to the Code's rule requiring disqualification of the former government lawyer's firm, the same wall does not save the firm.