Also known as:public official · public officer · public officers
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
1
in professional responsibility
A person who holds or has held a position of governmental authority. Former service in such a role subjects a lawyer to disqualification from representing private clients in matters of personal and substantial prior participation unless the government agency provides informed written consent.
2
in constitutional tort law
An individual who holds or appears to the public to hold a position with substantial responsibility for or control over governmental affairs. Such persons must prove actual malice by clear and convincing evidence to recover for defamatory statements concerning their official conduct.
Each sense below has its own examples, sources, and questions.
Sense 1
1
in professional responsibility
A person who holds or has held a position of governmental authority. Former service in such a role subjects a lawyer to disqualification from representing private clients in matters of personal and substantial prior participation unless the government agency provides informed written consent.
Sources & Authorities· 2 primary sources
Select any source to read its text and confirm it supports the definition.
Model Codes
Examples3
Former Agency Lawyer Seeks to Defend Target
Paula Pierce left her post as senior enforcement attorney at the state environmental agency after personally supervising an investigation of Meadowlands Development. Two months later she joined a private firm that Meadowlands retained to defend the same enforcement action. The firm must decline the representation because Paula participated personally and substantially in the matter while a public officer and the agency has not given informed written consent.
Lawyer Holds Confidential Agency Data
Pierre Poulin left the state environmental agency with knowledge of confidential enforcement strategies concerning a particular developer. After joining private practice he was asked to represent a client adverse to that developer in a related permitting dispute. Pierre may not accept the representation because the confidential government information could be used to the material disadvantage of the developer.
Firm Seeks to Represent Adversary of Former Client
Pilar Pena left the state environmental protection agency after acquiring confidential enforcement data about a factory's discharge practices. After joining private practice she was asked to represent a neighboring community group suing the same factory. The firm may accept the representation only if Pilar is timely screened and receives no part of the fee.
Frequently Asked3
Does Model Rule 1.11 apply only to elected officials or to all former government lawyers?+
The rule applies to any lawyer who formerly served as a public officer or employee of the government. It reaches lawyers who participated personally and substantially in a matter while in public service regardless of whether the position was elected or appointed.
Supporting sources
When may a firm represent a client adverse to a matter in which a former government lawyer participated?+
The firm may proceed only if the disqualified lawyer is timely screened from participation, receives no part of the fee, and prompt written notice is given to the appropriate government agency. Screening must be implemented before confidential information is shared.
Supporting sources
Sense 2
2
in constitutional tort law
An individual who holds or appears to the public to hold a position with substantial responsibility for or control over governmental affairs. Such persons must prove actual malice by clear and convincing evidence to recover for defamatory statements concerning their official conduct.
Sources & Authorities· 1 primary source
Select any source to read its text and confirm it supports the definition.
Cases
Restatements
Examples3
Blog Post Accuses Food Safety Director
Portia Price, county food safety director, sued an online review site after it published an unverified accusation that she ignored health violations at a politically connected caterer. Because Portia holds a position with substantial responsibility over governmental inspections, she must prove by clear and convincing evidence that the publisher acted with knowledge of falsity or reckless disregard for the truth.
Governor Sues Over Satirical Sketch
Pablo Perez, the well-known governor of State A, sued a television network after a comedy program aired a parody in which an actor portrayed him confessing to accepting kickbacks. As an elected public official, Pablo must establish actual malice by clear and convincing evidence before he can recover damages for statements concerning his official conduct.
Blog Accuses Municipal Officer of Favoritism
Paige Porter, municipal environmental officer, sued a local newspaper after it published an unverified claim that she approved illegal dumping permits for a campaign donor. Because Paige holds a position with substantial responsibility over governmental enforcement, she must prove by clear and convincing evidence that the publisher acted with knowledge of falsity or reckless disregard for the truth.
Frequently Asked2
Which government positions qualify someone as a public official for defamation purposes?+
Any person who holds or appears to the public to hold a position with substantial responsibility for or control over governmental affairs counts as a public official. The category includes elected officials and government employees whose duties involve discretion over public matters or whose performance is of independent public interest.
Supporting sources
What must a public official prove to recover for defamation about official conduct?+
A public official must prove by clear and convincing evidence that the defendant published the statement with actual malice, meaning knowledge that the statement was false or reckless disregard of whether it was false or not. The First Amendment imposes this heightened standard to protect robust debate on public issues.
When may a firm accept representation adverse to a person about whom a former government lawyer holds confidential information?+
The firm may accept the representation only if the disqualified lawyer is timely screened from any participation in the matter and receives no part of the fee. The rule protects against use of confidential government information to the material disadvantage of the person to whom it relates.
Supporting sources
. The dictum in Pennekamp v. Florida, 328 U. S. 331, 348-349, that "when the statements amount to defamation, a judge has such remedy in damages for libel as do other
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public officials
. But we can and should be faulted for clinging to an unworkable and irrational concept of law. My criticism is that we have taken so long to find better ways to accomplish these desired…
Criminal Law & ProcedureGeneral principles · State of mindUBEIntermediate