No Imputation Within the Agency

No Imputation Within the Agency

Rule 1.11(d)(2)(i) bars a single lawyer: the public officer or employee who participated personally and substantially in the matter while in private practice or nongovernmental employment.¹ The bar lifts only when the appropriate government agency gives its informed consent, confirmed in writing.² The agency decides as a representative of the public interest. It may waive the objection once it has been told the nature of the lawyer's earlier participation, including her own advice about any risk that the participation will keep influencing her.³

That bar belongs to the lawyer alone. When a current public officer or employee is disqualified from a matter under Rule 1.11(d), the conflict is not imputed to the other lawyers, officers, or employees of the agency.⁴ Imputation means attributing one lawyer's conflict to everyone associated with her, so that the whole group is barred along with her. Inside an agency that attribution does not happen. The other lawyers may handle the matter without the disqualified lawyer, although Comment 2 to Rule 1.11 adds that "ordinarily it would be prudent to screen such [disqualified] lawyers."⁵

A private firm starts from the opposite default. Under Rule 1.11(b), when a lawyer is disqualified under paragraph (a), the former-government-lawyer rule, no lawyer in a firm with which she is associated may knowingly undertake or continue the representation unless two conditions are met.⁶ The disqualified lawyer must be timely screened from any participation in the matter and apportioned no part of the fee,⁷ and written notice must be promptly given to the appropriate government agency so that it can ascertain compliance.⁸ The two settings differ in where the burden falls. A firm's conflict reaches every lawyer unless the firm builds the screen and notifies the agency. An agency's conflict stays with one lawyer unless something extends it. The next section treats former government lawyers in full; here the firm rule serves only as the contrast.

The screening option for firms exists because, as Comment 4 explains, the special provisions for screening or waiver for former public officers and government employees "are necessary to prevent the disqualification rule from imposing too severe a deterrent against entering public service."⁹ Non-imputation inside an agency follows a practical logic of its own. The danger under (d)(2)(i) is one lawyer's carried-over loyalty to a former private client, and a colleague who never worked for that client has no such loyalty to carry into the agency's decision. Spreading her disqualification would also pull whole offices off matters the public needs handled, because one new hire's private-practice history could strip the agency of every lawyer able to do the work.

A screen is still worth building. A disqualified lawyer who stays in the building remains a possible channel of influence over the matter, and a screen lets the agency show that her influence was kept away from it. The comment makes the screen advisable, not a condition of her colleagues' participation.

An exam stem that moves a conflicted lawyer between an agency and a firm tests which default applies, and the direction of travel decides it. A lawyer who carried private work into government falls under (d)(2)(i), and the agency's other lawyers may proceed. A lawyer who carried government work into a private firm falls under Rule 1.11(a), and the firm is barred unless it meets the conditions of Rule 1.11(b). Two errors recur. One applies the firm conditions to an agency and demands a formal screen and notice before the colleagues may act. The other treats the colleagues' freedom as the lawyer's own. Non-imputation frees the colleagues only, and the disqualified lawyer stays barred unless the agency consents.¹⁰ Each colleague, as a current government lawyer, also remains subject to Rules 1.7 and 1.9 on his or her own facts.¹¹