Elements of the Disqualifying Matter

Rule 1.11(d)(2)(i) does not bar a government lawyer from every task that resembles the lawyer’s earlier private work. It bars participation only in “a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment,” and the appropriate government agency can lift the bar by giving informed consent, confirmed in writing.¹ That clause sets three separate limits: the earlier work must have been in a matter, the lawyer must have taken part personally, and the part must have been substantial. The bar attaches only when all three are met. If any one fails, the (d)(2)(i) question ends.

Rule 1.11(e) defines “matter,” but nothing in the rule’s text defines “personally” or “substantially.” The decisions that give those words content mostly come from rules on former government lawyers, chiefly Rule 1.11(a), which uses the same words for the participation that triggers its own bar. Those decisions involve lawyers whose earlier work was public, while (d)(2)(i) concerns earlier work that was private. Because the wording is shared, this section borrows their reasoning by analogy. The three elements follow in the order a careful analysis takes them.

A Particular Matter

Rule 1.11(e) defines a matter as 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.² It adds any other matter covered by the conflict of interest rules of the appropriate government agency.³ Each item on the list is a defined undertaking with identifiable parties. The catch-all lets an agency’s own conflict rules enlarge the category, so a lawyer entering an agency must read those rules as well as the Model Rule’s list.

General policy work sits on the other side of the line. Commentary on Rule 1.11(a) observes that a government official who proposes, drafts, or enacts legislation or rules, or who develops general policy positions, is less likely to be able to curry the kind of particular favor with specific private interests with which the rule is concerned, so that work falls outside the rule’s special regulation of conflicts.⁴ The same line divides matters from general work in (d)(2)(i), because Rule 1.11(e) supplies one definition of “matter” for the whole rule.

re Sofaer shows where the line falls. The D.C. Court of Appeals, drawing on earlier ethics authority under the predecessor rule, DR 9-101(b), stated that work as a government employee in drafting, enforcing, or interpreting government or agency procedures, regulations, or laws, or in briefing abstract principles of law, does not disqualify the lawyer from later private work involving the same regulations, procedures, or points of law. The same “matter” is not involved, it explained, because the work lacks “discrete, identifiable transactions or conduct involving a particular situation and specific parties.”⁵ The subject of the work therefore does not decide the question.

United States v. Philip Morris Inc. shows the same division inside one lawyer’s record. The parties agreed that any work by a government lawyer defending a legal challenge to an administrative regulation is a matter for purposes of disqualification, and that administrative rulemakings are not, since “matter” is limited to “matters involving a specific party or parties.” Mr. Koslowe’s work on the Youth Tobacco Rulemaking therefore was not a matter, while his work on the FDA Tobacco Litigation was.⁶ Both pieces of work concerned tobacco. What separated them was the line between a rulemaking and a lawsuit.

Neither decision involves a lawyer moving from private to public work, but both apply the definition that governs (d)(2)(i), so the line carries over.

Two cautions limit how far a no-matter conclusion carries. An assignment that looks like general policy work can still be covered if the agency’s own conflict rules reach it, because the catch-all extends the definition to anything those rules cover. And a finding that the earlier work was not a matter ends only the inquiry under (d)(2)(i); the sections on Rules 1.7 and 1.9 below explain why a duty to a former private client can still limit the lawyer’s role.

Participated Personally

The first adverb in the bar ties it to the individual lawyer. Rule 1.11(d)(2)(i) reaches a matter in which the lawyer “participated personally and substantially” in private practice or nongovernmental employment,⁸ so the question is what the lawyer herself did. Work by her firm, by her company’s legal department, or by colleagues down the hall belongs to the matter’s history. It matters here only if she took part too.

The rule does not define the word, and the D.C. Court of Appeals found no definition in the comments to its own Rule 1.11. In Sofaer, a disciplinary case under Rule 1.11(a), the court noted that the comments do not address personal and substantial participation, that no definition was provided, and that no D.C. decision had interpreted the term in a disciplinary proceeding. It looked for some insight to the regulations implementing 18 U.S.C. § 207, though in the distinct context of a criminal statute banning conflicts of interest by government employees.⁹ Commentary on the same word in Rule 1.11(a) reads it to attach only when the lawyer participated “personally,” that is, directly in the matter, and not merely because she served in the same governmental office as others who handled it.¹⁰ Replace the government office with a law firm or a company legal department and (d)(2)(i) follows by analogy: sharing an employer with the lawyers who handled the matter is not itself participation.

A rule keyed to affiliation would sweep far wider than one keyed to the lawyer’s own work. A lawyer from a large firm would face a bar on every matter any colleague had handled, including matters she never saw.

Exam stems often stress how heavily the former firm worked on a matter, which tests whether you notice that the bar attaches to the individual lawyer’s own work. The element sets a low threshold in one respect: the lawyer need not have led the matter, because the question is only whether she took part directly. How much she did is the separate question of substantiality.

A finding that the lawyer did not participate personally ends only the (d)(2)(i) inquiry. Rules 1.7 and 1.9 ask different questions, such as whether the lawyer holds confidential information about a former client. If Priya had learned the landowner’s confidences from a colleague at the firm, the Rule 1.9 analysis would remain open even though (d)(2)(i) does not reach her.

Participated Substantially

Personal participation is necessary but not enough. Rule 1.11(d)(2)(i) also requires that the lawyer’s participation have been “substantial.”¹² A lawyer who worked on the matter directly but only in a slight way escapes the bar. Like “personally,” the word has no definition in the comments to the D.C. rule at issue in Sofaer, and courts fill the gap by analogy to related provisions.¹³

The working test comes from commentary on Rule 1.11(a). Participation is substantial when it goes beyond routinely forwarding a document or taking a purely ministerial action that involved no exercise of discretion. Court appearances, interviews of clients or witnesses, preparation of litigation documents, and discussions of strategy are examples.¹⁴ The commentary’s line is discretion: the real work on that list calls for the lawyer’s judgment, while a forwarded document or a mechanical step calls for none. Substantiality therefore asks about the quality of the lawyer’s work.

In Sorci, the Iowa Supreme Court affirmed the disqualification of a former assistant county attorney. The Iowa rule asked whether the lawyer had had “substantial responsibility” over the matter in government, a neighboring formulation, and the court held that “[a]dvising a client, authoring correspondence or reports, signing a pleading, and appearing at a hearing each involve substantial responsibility.”¹⁵ The court treated each act, standing alone, as involving substantial responsibility. It explained that the bar prevents “the treachery of switching sides” in an ongoing matter, protects confidential information from being jeopardized, and removes any suspicion that a lawyer conducted government work so as to acquire future employment.¹⁶

The tobacco litigation decision adds that formal status does not control. Whether Mr. Koslowe entered an appearance or formally represented the federal defendants was irrelevant; the issue was “whether he worked personally and substantially in any capacity on the Litigation.”¹⁷ An answer that stops at the absence of an appearance or a signature misses the point.

The substantiality element is best run as a short sequence applied to the lawyer’s own record of work on the matter.

A finding that the lawyer’s involvement was not substantial ends only the (d)(2)(i) inquiry. Rules 1.7 and 1.9 still apply to a current government lawyer, so a duty to a former private client can limit the lawyer’s role even when the earlier contact was slight.