Concept
Current Government Lawyers
Imputation to the new firm and screening
Current Government Lawyers
Rule 1.11 governs the disqualification of lawyers associated in a firm with former or current government lawyers.1 The preceding sections followed the former government lawyer into a private firm. This section stays with the lawyer who is still in public service and asks two questions: what the rules forbid that lawyer personally, and what the lawyer's conflict does to colleagues in the same government office.
The Current Lawyer's Own Bars
Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee is subject to Rules 1.7 and 1.9,2 so the ordinary rules on concurrent and former-client conflicts travel with the lawyer into public service. Rule 1.11(d) then adds two prohibitions, each aimed at a pressure peculiar to public office.3
The first prohibition looks back. A lawyer presently serving in government may not participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the government agency gives informed consent, confirmed in writing.4 The risk is that the lawyer's earlier private loyalty will color the public decision. The consent that cures the risk comes from the agency, and not from the former private client.
The second prohibition looks ahead to the lawyer's next job. A lawyer in government may not negotiate for private employment with any person who is involved as a party, or as a lawyer for a party, in a matter in which the lawyer is participating personally and substantially.5 The only exception the rule states is for a law clerk to a judge, other adjudicative officer, or arbitrator, who may negotiate as Rule 1.12(b) permits and subject to its conditions. A lawyer who hopes for a job from a participant in the matter has a personal reason to please that participant, and that reason can bend the public judgment the lawyer is paid to exercise. The rule's text names no consent exception for the ordinary government lawyer, so agency approval does not rescue the negotiations. An assistant who discusses a job with the firm representing the other side of a case the assistant is handling personally and substantially is within the bar. Discussing a job with a firm that appears in none of the assistant's matters does not implicate it.
No Imputation Within the Government Office
When a current government lawyer is disqualified under Rule 1.11(d), the conflict is not imputed to the other lawyers, officers, or employees in the same government agency, although the commentary advises that ordinarily it would be prudent to screen the disqualified lawyer.9 That reverses the private-firm baseline. In a private firm, one lawyer's conflict is every lawyer's conflict, because the duty of loyalty runs to the client from the entire firm, whichever lawyer handles the matter. The cross-reference to Rule 1.11 in Rule 1.10(d) is what keeps that per se rule from extending to government offices.10
Non-imputation is not blanket immunity. Associated lawyers in a government office may still be directly disqualified if a conflict affecting a colleague is of such a nature that office relationships or other influences would materially limit the representation of those other lawyers.11
The policy behind the departure appears in a judicial formula: woodenly applying the automatic imputation rule that usually governs private law firms would be impractical and against the public interest.12 Mechanical imputation would let one lawyer's earlier private engagement disqualify every colleague in a public law office. The rules therefore keep the conflict personal to the lawyer and treat a screen as the prudent safeguard.
The same work would produce a different result in private practice. Had the lawyer joined a private firm defending the landowner's opponent in that dispute, the baseline rule of Rule 1.10(a) would ordinarily attach his conflict to every lawyer in the firm.13 The employer, public or private, selects the imputation rule. The conditions that organized the earlier sections of this chapter (a timely screen, no share of the fee, and notice) answer imputation that exists. Rule 1.11(d) imputes nothing within the government office, so those conditions do not govern the office's right to proceed.
California courts have treated government-office conflicts in the same spirit. City & County of San Francisco v. Cobra Solutions, Inc. reviews the decisions that upheld screens in that setting.14 City of Santa Barbara v. Superior Court upheld an ethical screen when a conflicted attorney joined a municipal law office. In Chadwick v. Superior Court, an attorney in a county public defender's office left to join the local district attorney's office, where he was ethically screened from any involvement with his prior cases. The Court of Appeal concluded that his personal conflict should not be imputed to disqualify the entire district attorney's office.15
The Cobra opinion also marks the limit of those decisions. In both, the screened attorney was simply one of the attorneys in the government office. In Cobra, by contrast, the conflicted attorney was the City Attorney, under whom and at whose pleasure all deputy city attorneys serve.16 The distinction follows from how a screen works. A screen protects by cutting the conflicted lawyer off from the people handling the matter. When the conflicted lawyer heads the office, those people report to the very person from whom they are supposed to be isolated. The staff-attorney decisions therefore do not settle that a screen suffices when the head of the office is the conflicted lawyer, and an exam stem is likely to turn on that point.
A stem that moves a lawyer from private practice into a prosecutor's or agency's legal office and asks whether the entire office must withdraw invites the answer that Rule 1.10(a) imputes the conflict to everyone. The better answer starts with Rule 1.10(d), which routes the question to Rule 1.11(d), where the lawyer is personally barred and the colleagues are not.