What Counts as Participating

What Counts as Participating

Rule 1.11(d)(2)(i) bars a lawyer who now serves as a public officer or employee from participating in a matter in which the lawyer participated personally and substantially in private practice or nongovernmental employment, unless the appropriate government agency gives informed consent, confirmed in writing.¹ The rule uses "participate" twice, and the two uses face opposite directions. The first looks back at the private work, and the adverbs "personally and substantially" belong to it alone. The second looks at the present: what the lawyer does now in the government's handling of the matter. The text attaches no such qualifier to that present participation. Once the earlier private involvement is established, the remaining question is which government roles trigger the bar.

The answer is broad. Participation includes legal representation as a government lawyer, and it also includes other actions or decisions as a government officer or employee that pertain to a matter involving a specific party or parties.² A board member who votes on an application, a supervisor who approves the staff's handling of a claim, and an official who decides how a dispute with a named company will be resolved are each acting in a public role, though none acts as counsel. The rule reaches any lawyer who is currently a government officer or employee, not only lawyers hired to work as government attorneys.³

The breadth follows from the danger the rule addresses. When a lawyer worked on the same matter for a private client or entity, there is a concern that the lawyer will carry that private influence into the government, and show loyalty to the prior client, in formulating a public position on the matter or its resolution.⁴ Government outcomes seldom come from one person standing before a tribunal. A decision-maker chooses the result, a supervisor shapes what reaches the decision-maker, and an adviser recommends what the result should be. Any of them can bring an old client's interest into the decision as easily as an advocate can. A rule limited to formal appearances would leave that influence free to work through votes, approvals, and recommendations. The inquiry therefore looks at the lawyer's actual role in the process that produces the government's position.

Courts applying the neighboring "personally and substantially" language have also looked past formalities. In United States v. Philip Morris Inc., the court called it irrelevant whether Mr. Koslowe had ever entered an appearance or formally represented the federal defendants in the litigation. The issue was whether he worked personally and substantially in any capacity on it.⁵ That statement addresses a lawyer's earlier work on a matter, so it bears on the present inquiry only by analogy. The analogy still helps: the court asked what the lawyer actually did and set aside titles and appearances. A lawyer who signs nothing and speaks for no one, but shapes how the matter comes out, is as involved in the government's handling as one who appears.

A conflicted lawyer has two ways to proceed, and they work differently. Recusal means the lawyer takes no part in the matter. The rule forbids participation, so a lawyer who does not participate violates nothing, and recusal needs no one's permission. Agency consent works the other way: it permits participation that would otherwise be barred, and it must be informed and confirmed in writing.⁶ Recusal must be real to count. A lawyer who leaves the room for the vote but is asked for an opinion in the hallway has likely still taken part in the decision process.

Students most often blur the rule's two time frames. The earlier private work must have been personal and substantial, while the present participation is whatever part the lawyer takes in the government's handling of the matter. An exam stem that puts the lawyer in a non-lawyer public role, such as a board seat, is testing whether you see that the bar does not depend on acting as counsel.