After a lawyer leaves a government agency, which matters is she barred from handling for private clients, and can her new firm screen her so the rest of the firm can take the work?

Plain-English summary

The committee was asked whether a lawyer who left a government claims-administration agency may represent private claimants before that agency, and whether she may sue the agency to challenge rules she helped develop. The threshold question was whether Rule 1.11 ("Successive Government and Private Employment") is the sole source of a former government lawyer's post-employment obligations or whether Rule 1.9 also applies.

The committee concluded that Rule 1.11 alone determines those obligations, and that Rule 1.9(a) and (b) do not apply. It reasoned from the text, commentary, and Kutak Commission history that the two rules' personal-disqualification standards differ and would produce inconsistent results if both applied: Rule 1.9 reaches any matter in which the lawyer "represented" the government and imputes to the whole firm under Rule 1.10, while Rule 1.11(a) disqualifies only from a "particular matter involving a specific party or parties" in which the lawyer "participated personally and substantially," and allows screening. So a former government lawyer is barred only from particular matters in which she personally and substantially participated, regardless of whether she would now be adverse to the agency, plus matters in which she holds "confidential government information" about an adverse third party under Rule 1.11(b). General rulemaking and policy work is not a "particular matter," so she may challenge agency rules she helped craft. The committee anchored its definition of "matter" in Formal Opinion 342.

The committee held, however, that Rule 1.9(c) still applies to former government lawyers because it has no analogue in Rule 1.11 and creates no inconsistency. Rule 1.9(c) bars using or revealing nonpublic information relating to the former representation to the agency's disadvantage. If competent and zealous representation of a new private client would require using or disclosing such confidences, that obligation would materially limit the new representation under Rule 1.7(b), and the committee thought it unlikely a lawyer could reasonably believe the representation would not be adversely affected, so she could not proceed without the agency's consent. Even then, the committee held, a former government lawyer's conflict is never imputed to her new firm so long as she is screened under Rule 1.11(a).

Currency note

This opinion was issued in 1997, before the American Bar Association's adoption of the 2002 (Ethics 2000) revisions to the Model Rules of Professional Conduct, which renumbered and rewrote Rule 1.11 (and the relationship among Rules 1.9, 1.10, and 1.11). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Which rule governs a former government lawyer's conflicts, Rule 1.9 or Rule 1.11?

A: The committee concluded that Rule 1.11 alone governs and that Rule 1.9(a) and (b) do not apply, although Rule 1.9(c)'s confidentiality limits still apply to the former government client's nonpublic information.

Q: Can a former agency lawyer represent private clients before her old agency?

A: The committee said she may, except in the particular matters she personally and substantially handled in government, and subject to Rule 1.9(c) where the new work would require using or revealing the agency's confidences.

Q: Can she challenge agency rules she helped write?

A: The committee concluded that rulemaking is generally not a "particular matter" under Rule 1.11, so she is not barred from challenging the rules, subject again to the Rule 1.9(c) limits on using nonpublic agency information.

Q: If she is disqualified, can her new firm still take the case?

A: Yes. The committee held that a former government lawyer's conflict, whether under Rule 1.11(a) or Rule 1.9(c), is not imputed to her firm as long as she is screened from the matter and apportioned no part of the fee.

Background and rules framework

The opinion interpreted Model Rule 1.11 (successive government and private employment), including its "personal and substantial participation," "particular matter," "confidential government information," and screening provisions, and held it controls over Rule 1.9(a) and (b) (former-client conflicts) and their imputation under Rule 1.10. It applied Rule 1.9(c) (use and disclosure of a former client's information) and Rule 1.7(b) (material limitation), with Rule 1.6 (confidentiality) and Rule 3.3 setting the exceptions. Because the ABA interprets the Model Rules directly, there is no state-rule analogue.

Citations and references

Rules of Professional Conduct:

• MR 1.11 (successive government and private employment; screening)
• MR 1.9 (duties to former clients; in particular 1.9(c) on use of confidences)
• MR 1.10 (imputation of conflicts)
• MR 1.7 (material limitation)
• MR 1.6 (confidentiality of information)

Statutes:

• 18 U.S.C. § 207 (federal post-employment conflict-of-interest restrictions, noted as extrinsic to the Model Rules)

Cases:

• Securities Investor Protection Corp. v. Vigman, 587 F. Supp. 1358 (C.D. Cal. 1984), defining the "same matter"
• National Bonded Warehouse Ass'n v. United States, 718 F. Supp. 967 (Ct. Int'l Trade 1989), rulemaking participation not a disqualifying "matter"

Other opinions cited:

• ABA Formal Op. 342 (1975): the meaning of "matter" for former government lawyers under DR 9-101(B)

See also

• ABA Formal Op. 97-405: Conflicts in representing government entities
• ABA Formal Op. 509: Confidential government information and disqualification
• ABA Formal Op. 99-415: Former in-house lawyer's conflicts
• RI Ethics Advisory Panel Op. 2001-04: Former Government Lawyer Representing Private Clients Against the Same Agency
• RI EAP Op. 2003-01: Town Solicitor May Sue Families the Town Is Prosecuting Only With Both Clients' Informed Consent

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: 97-409.pdf