Concept
Comparing Related Conflict Rules
Former judge, arbitrator, mediator, or other third-party neutral
Comparing Related Conflict Rules
Rule 1.12(a) has three close relatives, and each shares something with it that invites a wrong turn. The rule for former government lawyers uses the same test of personal and substantial participation. The former-client rules speak the same language of consent and screening. The judicial recusal standards also speak of disqualification, though they govern a judge who is still on the bench. Against that background, the text of Rule 1.12(a) bears restating: except as paragraph (d) provides, a lawyer “shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially” as a judge or other adjudicative officer, as a law clerk to such a person, or as an arbitrator, mediator, or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.1
The lawyer's earlier seat sorts the rules before any element is applied. A lawyer who decided a dispute, clerked for someone who did, or served as an arbitrator or mediator falls under Rule 1.12. A lawyer who worked for a public agency falls under Rule 1.11. A lawyer who represented a private client falls under Rule 1.9. A judge deciding whether to hear a case now pending falls under the judicial conduct code and under none of the lawyer conflict rules. Once the seat is known, the rules part ways on three questions: what the lawyer must have done in the earlier role, who may waive the bar, and how a firm or a court can contain the problem. The table maps the first of those answers, and the sections that follow take up the rest.
| Rule | Who it governs | What triggers the bar |
|---|---|---|
| Rule 1.12(a) | Former judge, law clerk, arbitrator, mediator, or other neutral | Personal and substantial participation in the same matter |
| Rule 1.11(a) | Former public officer or employee | Personal and substantial participation in the same matter, plus a bar on using confidential government information |
| Rule 1.9(a) | Lawyer who formerly represented a client | Same or substantially related matter in which the new client is materially adverse to the former client |
| Judicial recusal | Sitting judge | Impartiality might reasonably be questioned, or one of the listed recurring scenarios |
Former Government Lawyers Under Rule 1.11
Rule 1.11(a) is built on the same frame as Rule 1.12(a). A former public officer or employee may not represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives informed consent, confirmed in writing.2 Both rules answer the same temptation, which is that someone who has held public power may later turn it into private advantage. Rule 1.11(a) keeps the former official from using a public position to become attractive to future private employers, from later undermining a decision made or a position advocated in office, and from abusing confidential information obtained there.3
The participation requirement carries the same two words into both rules, and the government-lawyer version defines them. Participation is personal when the lawyer acted directly in the matter; serving in the same office as colleagues who handled it is not enough. It is substantial when it goes beyond forwarding a document or taking a ministerial action that involved no exercise of discretion, and court appearances, interviews of clients or witnesses, preparation of litigation documents, and discussions of strategy qualify.4 The earlier sections applied the same two requirements to judges and clerks.
The rules cross-refer on job hunting as well. Rule 1.11(d)(2) generally bars a lawyer still in public service from negotiating for private employment with any party involved in a matter the lawyer is handling personally and substantially, because the risk is manifest that the lawyer will be improperly influenced when seeking work from someone with an interest in that matter. Its exception for a law clerk to a judge, other adjudicative officer, or arbitrator points straight to Rule 1.12(b), which requires the clerk to notify the judge, adjudicator, or arbitrator.5
Because the rules share so much, the points where they part are the ones worth learning. There are three.
The first is who may waive the bar. The former government lawyer's client was the agency, and the interest protected is the public's, so Rule 1.11(a) makes the appropriate government agency the source of consent.6 A neutral never represented anyone. Every party appeared expecting impartiality, and the party who now faces the former neutral across the table is the one most exposed, so Rule 1.12(a) requires the informed consent of all parties to the proceeding.7 Neither consent can stand in for the other: an agency's agreement does nothing for a former judge, and a private client's agreement does nothing for a former government lawyer.
Both lawyers took part in a specific proceeding and are now asked to take a side in it. The difference is the seat each held. The judge was an impartial decision-maker whom both sides trusted, so both sides hold the waiver; the agency lawyer was the agency's advocate, so the agency does.
The second difference is that Rule 1.11 protects confidential government information through a prohibition that follows the information instead of the matter. Rule 1.11(a) bars a former public officer from using or revealing confidential information relating to the representation of a former government client.8 Rule 1.11(c) carries the concern to the firm: a firm with which the former officer is associated may not undertake or continue a representation adverse to a person about whom the lawyer obtained confidential government information, if that information could be used to the person's material disadvantage.9 A bar tied only to matters would leave a gap, because information gathered in one proceeding can be turned against the person it concerns in another. The text of Rule 1.12(a) quoted above has no comparable prong; its bar runs through participation in a matter.
Two facts drive that result. The lawyer never touched the new proceeding, and the lawyer left the agency holding CleanCo's confidences. The first fact would clear the lawyer on a participation analysis, and the second keeps the problem alive. A student who stops at participation therefore clears a lawyer whom the information prong catches. The error also runs the other way when a student hunts for an information prong in a former-judge problem, because the text of Rule 1.12(a) contains none.
The third difference is that Rule 1.11(a) reaches particular matters and leaves policy work alone. A government lawyer who proposes, drafts, or enacts legislation or rules, or who develops general policy positions, has little chance to curry favor with specific private interests, so those activities fall outside the special regulation of Rule 1.11(a).10 A former agency lawyer who helped write a regulation does not trigger paragraph (a) by that work alone, while the lawyer who handled an enforcement action against identified parties does. For a neutral the line seldom matters, because a judge or arbitrator decides particular disputes between identified parties.
The first step does the real work. A hearing officer employed by an agency is a government employee in the ordinary sense, yet the officer acted as an adjudicative officer, so Rule 1.12 applies and all parties must consent. A lawyer who worked in the same agency as its advocate acted for the government, so Rule 1.11 applies and the agency's consent controls.
Former Clients and Imputation Under Rules 1.9 and 1.10
Rules 1.12(a) and 1.9(a) test different things. Rule 1.12(a) asks what the lawyer did: did the lawyer participate personally and substantially, as a judge, clerk, arbitrator, mediator, or other neutral, in this matter? If so, the lawyer may not represent anyone in connection with it unless all parties to the proceeding give informed consent, confirmed in writing.13 The text asks nothing about whether the new client's interests are adverse to anyone's, and nothing about whether a later matter is related to the earlier one. Rule 1.9(a) asks both. A lawyer who formerly represented a client in a matter may not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the former client, unless the former client gives informed consent, confirmed in writing.14 A Rule 1.9 problem therefore tests four things: a former client, a same or substantially related matter, material adversity, and the former client's consent. A Rule 1.12 problem tests the lawyer's neutral role, the same matter, personal and substantial participation, and the consent of all parties.
Each extra element of Rule 1.9 follows from what the rule protects. Loyalty to a former client survives the representation only to the extent of forbidding the lawyer to undermine the very work done for that client, and it attenuates as time passes, so the primary purpose is to prevent the adverse use of the former client's confidential information for the benefit of a current client.15 Adversity matters because information becomes a weapon only when the new client's position runs against the former client's. Relatedness matters because what a client shared is at risk only where it bears on the new work. The usual illustration draws the line. A lawyer who secured environmental permits for a shopping center may not represent neighbors opposing rezoning of the property on environmental grounds, yet the same lawyer may defend a tenant of the completed center against eviction for nonpayment of rent.16
Neither element has anything to measure for a neutral. A judge, arbitrator, or mediator never represented anyone, so no client confided in the lawyer expecting loyalty, and no earlier work for a client exists to be undermined. Rule 1.12 therefore keys its bar to the same matter and to the lawyer's own participation in it, whichever side the lawyer later joins.
The consent rules split along the same line. Under Rule 1.9 the person who can waive is the former client, since the earlier work and whatever the client disclosed in it were that client's.
The two lawyers face similar-looking engagements, and what separates them is whether the lawyer once sat above the dispute or served one side of it. A former neutral needs the consent of all parties to the proceeding. A former advocate needs the consent of the former client alone.
Imputation adds a second axis. Rule 1.10 extends a disqualified lawyer's conflict to the lawyer's firm, and screening is the device that can stop that extension. The American Bar Association approved screening for lawyers who change firms only in February 2009, after rejecting it as recently as 2001 and voting to postpone a proposal indefinitely in 2008. The House of Delegates approved it by a vote of 226 to 191 and turned away a narrower alternative that would have allowed screening only if the lawyer “had neither substantial involvement nor material information relating to the matter.”17 Rule 1.12, by contrast, builds a screen into its own text, as the earlier sections showed.
That debate concerned a lawyer who arrives from another firm carrying a former-client conflict. It offers no help to a firm that creates a conflict with its own current client, and the relationship between the matters is irrelevant there.
The unrelated subject matter does not rescue the firm, because for directly adverse representation it is immaterial whether the two matters are related.18 Whether screening is available therefore depends on the kind of conflict. It fits a firm that hires a former neutral and, in jurisdictions that follow the ABA's 2009 approval, a firm that hires a lawyer who migrates with a former-client conflict. It does not fit a firm's conflict with a client it represents now.
Judicial Recusal Rules Distinguished
Recusal and Rule 1.12 are separated by timing. The judicial disqualification standards of the Model Code of Judicial Conduct, commonly called recusal rules, tell a sitting judge when to step aside from a case pending before that judge. Rule 1.12(a) speaks to a lawyer who has already left an impartial role, and it bars that lawyer from representing anyone in a matter in which the lawyer participated personally and substantially as a judge, clerk, or neutral, absent the informed consent of all parties, confirmed in writing.22 Both bodies use the word “disqualification,” so a stem that mentions a judge and a conflict can send a student to the wrong one.
The Model Code states its recusal standard in two tiers. The first is a general directive that a judge “shall disqualify himself or herself from any proceeding in which the judge's impartiality might reasonably be questioned.” The directive ends with the clause “including, but not limited to the following circumstances,” which leads into the second tier, a list of recurring scenarios in which disqualification is automatic.23 Every item describes a judge's relationship to a case not yet decided, and the cure is the same in each: another judge hears the case.
The two rule sets prevent different harms and so offer different remedies. Recusal protects the litigants in an undecided case from a decision-maker whose impartiality is in doubt, and a judge who steps aside simply hands the case to a colleague. Rule 1.12 begins its work after the judge has gone. The ruling has been made, and the concern is that the service will be turned into private advantage, either because a decision was shaped by hope of later work or because what the parties revealed to the neutral is carried into the representation of one side. A recusal problem asks whether this judge should hear this case. A Rule 1.12 problem asks whether a lawyer, and through the lawyer's new firm perhaps the firm, may take an engagement. Neither answer carries over to the other.
The two tiers interact differently from jurisdiction to jurisdiction, and the contrast shows what recusal measures. The federal statute's second tier requires a judge to step aside for financial interests “however small,” which presumably includes an interest too small to raise a reasonable doubt under the first tier, such as a single share of a corporate defendant's stock valued at $0.75. Under the Model Code's second tier, disqualifying economic interests are limited to those that would call the judge's impartiality into question under the first tier.24
Under either standard the inquiry concerns the judge's present stake in a case on her docket, and it never reaches the question Rule 1.12 asks.
The stock holding could never be resolved by asking whether the judge participated personally and substantially, and the former judge's engagement cannot be resolved by asking whether she was biased. Rule 1.12(a) looks only at the covered role, the same matter, and the extent of the lawyer's own participation, so a clean record on every recusal ground gives the former judge no defense.25 A single fact pattern can also pass through both rule sets at different times.
The errors this sorting prevents run in both directions. A student who imports recusal vocabulary into a former-judge problem asks whether the lawyer was biased or had an interest, and a lawyer cleared on those questions looks safe when Rule 1.12(a) in fact bars the engagement. A student who imports Rule 1.12 into a sitting-judge problem asks whether the judge participated substantially and whether all parties consented, and misses the recusal ground that actually controls. The detailed recusal grounds belong to the judicial-conduct material; what matters here is recognizing which body of rules a fact pattern is testing.