When a former government employee enters private practice, when does Rule 1.11 bar them from working on a matter they touched in government service?

Plain-English summary

The Committee was asked whether Rule 1.11(a) of the Alaska Rules of Professional Conduct bars a lawyer from representing a private client in a matter in which the lawyer had participated personally and substantially as a government officer or employee, but not as a lawyer, and when a subordinate's work in government is attributable to the lawyer for disqualification.

The opinion concluded that Rule 1.11(a) does not prohibit a lawyer who, in government, participated in making policy or in drafting or implementing regulations from later representing a private client on issues related to that policy or those regulations. It does, however, prohibit later private representation in a discrete transaction or set of transactions between identifiable parties in which the lawyer participated personally and substantially as a public officer or employee, whether the lawyer's government role was as a lawyer or as a non-legal official. The opinion drew this distinction from the definition of "matter" in Rule 1.11(d) and from ABA Formal Opinion 342 (1975), under which the same lawsuit or the same issue of fact involving the same parties is the same "matter," while drafting or interpreting regulations is not.

On subordinates, the opinion concluded that work done by the lawyer's government subordinates does not disqualify the lawyer unless the lawyer personally and substantially participated in the matter. Borrowing the standard of the federal conflict-of-interest statute and ABA Formal Opinion 342, the opinion reasoned that "substantial responsibility" requires a closer and more direct involvement than mere general supervision or perfunctory approval; the official must have been personally involved to an important, material degree.

Currency note

This opinion was issued in 1995, before Alaska's adoption of the 2009 revisions to the Alaska Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Could a former government employee work in private practice on the same policy or regulations they helped write?

A: Yes. The opinion concluded Rule 1.11(a) does not disqualify a lawyer who participated in making policy or drafting or implementing regulations from later private work on issues related to that policy or those regulations, because that is not the same discrete "matter."

Q: What if the lawyer had handled a specific case or transaction in government?

A: Then the opinion concluded Rule 1.11(a) bars later private representation in that discrete matter involving identifiable parties, regardless of whether the lawyer's government role was legal or non-legal.

Q: Does work done by the lawyer's government subordinates disqualify the lawyer?

A: No, not by itself. The opinion concluded the lawyer is disqualified only where the lawyer personally and substantially participated, which requires more than general supervision or perfunctory approval.

Background and rules framework

The opinion interpreted Alaska Rule of Professional Conduct 1.11 (Model Rule 1.11, successive government and private employment), focusing on the prohibition in Rule 1.11(a) and the definition of "matter" in Rule 1.11(d). It read the rule consistently with the former Code provision DR 9-101(B) and ABA Formal Opinion 342 (1975), and noted the federal conflict-of-interest statute, 18 U.S.C. 207, as the source of the "personally and substantially" language, along with the state ethics standard in AS 39.52.180.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.11 / Alaska RPC 1.11(a), (d) (successive government and private employment; definition of "matter")

Statutes:

• 18 U.S.C. 207 (federal conflict-of-interest statute)
• AS 39.52.180 (state standard for former public officers)

Other opinions cited:

• ABA Formal Opinion 342 (1975): former government lawyers and "substantial responsibility"
• Alaska Ethics Opinion 83-4: disqualification of a former non-legal government official

See also

• Alaska Ethics Op. 2000-1: Tribal Entity and Tort Claimant Conflict
• Alaska Ethics Op. 99-2: Municipal Attorney Advising a Quasi-Judicial Board
• Alaska Ethics Op. 2012-3: Closely-Held Organization Owner Conflicts

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/95-2.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinion No. 95-2
Government Employee Entering the Private Practice of Law with a Firm
Handling Litigation Against the Attorney's Former Agency.
The Ethics Committee has been asked whether Rule 1.11 (a) (endnote 1)
Alaska Rules of Professional Conduct, prohibits a lawyer from representing a
private client in a matter in which the lawyer had previously participated
personally and substantially as a government officer or employee, but not in
the capacity of a lawyer. We have also been asked under what circumstances
would work done by a government employee's subordinates be attributable to
the government employee for purposes of disqualification under Rule 1.11(a).
We conclude that ARPC 1.11(a) does not prohibit a lawyer who
participated personally and substantially as a government officer or employee
in making policy or in drafting or implementing regulations from representing a
private client in connection with issues related to that policy or those
regulations. However, ARPC 1.11(a) does prohibit a lawyer from representing a
private client in connection with a discrete transaction or set of transactions
between identifiable parties in which the lawyer participated personally and
substantially as a public officer or employee, regardless of whether the lawyer's
previous public duties were those of a government lawyer or those of a
government official who did not have the duties of a lawyer.
We further conclude that work done by the lawyer's government
employee subordinates does not disqualify the lawyer from representing a
private client unless the lawyer participated personally and substantially in the
matter in question while in public service.
1. Disqualification Due to the Lawyer's Government Work.
Alaska Bar Association Ethics Opinion 83-4 concluded that DR 9-101(B),
Alaska Code of Professional Responsibility, (endnote 2) prohibited a lawyer
from representing a private client in connection with a matter in which the
lawyer participated personally and substantially as a public officer or
employee, regardless of whether the lawyer had participated in the matter as a
lawyer or merely as a non-legal government official or employee. In Ethics
Opinion 83-4, the lawyer, although working for the government in a non-legal
position, had direct supervisory responsibility over lawyers defending litigation
against the lawyer's agency. The lawyer then left the agency to join the law firm
prosecuting the litigation.
Ethics Opinion 83-4 followed the analysis found in ABA Committee on
Ethics and Professional Responsibility, Formal Op. 342 (1975): DR 9-101(B)
uses the words "public employee," not the word "lawyer," a choice of words that
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compels the inference that the broader construction was intended. The drafters
of ABA Model Rule 1.11(a), which was adopted without change by the Alaska
Supreme Court as Rule 1.11(a), Alaska Rules of Professional Conduct, were
undoubtedly familiar with ABA Formal Opinion No. 342. Thus, the drafters'
decision to use the words "public officer or employee" and not "lawyer"
indicates an intention to give Rule 1.11(a) the same broad application
previously given DR 9-101(B).
The potential for overbroad application of Rule 1.11(a) is limited by the
definition of "matter" provided in Rule 1.11(d):
(d) As used in this Rule, the term "matter" includes:
(1) Any judicial or other proceeding, application request for ruling or other
determination, transaction, claim, controversy, investigation, charge, accusation, arrest or
other particular matter involving a specific party or parties; and
(2) any other matter covered by the conflict of interest rules of the appropriate
government agency.
According to Hazard and Hodes, The Law of Lawyering, 368 (2d ed. 1990),
Rule 1.11(d) codifies the definition of the term "matter" as found in ABA Formal
Opinion No. 342:
. . . [T]he term seems to contemplate a discrete and isolatable transaction or set of
transactions between identifiable parties. Perhaps the scope of the term "matter" may be
indicated by examples. The same lawsuit or litigation is the same matter. The same issue
of fact involving the same parties and the same situation or conduct is the same matter.
By contrast, work as a government employee in drafting, enforcing or interpreting
government or agency procedures, regulations, or laws, or in briefing abstract principles
of law, does not disqualify the lawyer under DR 9-101(B) from subsequent private
employment involving the same regulations, procedures, or points of law; the same
"matter" is not involved because there is lacking the discrete, identifiable transactions or
conduct involving a particular situation and specific parties. (Footnotes omitted.)
Thus, Rule 1.11(a) does not prohibit a lawyer who participated personally
and substantially as a government officer or employee in making policy or in
drafting or implementing regulations from representing a private client in
connection with issues related to that policy or those regulations. On the other
hand, Rule 1.11(a), prohibits a lawyer from representing a private client in
connection with a discrete transaction or set of transactions between
identifiable parties in which the lawyer participated personally and
substantially as a public officer or employee, regardless of whether the lawyer's
previous public duties were those of a government lawyer or those of a
government official who did not have the duties of a lawyer. (endnote 3)
2. Disqualification Due to Work of the Lawyer's Subordinates.
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Rule 1.11(a) does not prohibit a lawyer from representing a private client
unless the lawyer participated "personally and substantially" in the matter
while employed by the government. Work done by the lawyer's government
employee subordinates would not disqualify the lawyer from representing a
private client unless the lawyer personally took a hand in the matter in
question. Rule 1.11(a) uses the language of the federal conflict of interest
statute, 18 U.S.C. § 207(a)(3), to clarify that if there was no personal
involvement the lawyer is not disqualified. Rule 1.11, ABA Model Rules of
Professional Conduct, Legal Background at 78 (Proposed Final Draft, May 30,
1981) (noting that Rule 1.11(a) "adopts, in part, the language of the relevant
federal statute extending disqualification to matters in which the lawyer
'participates personally and substantially . . . through decision, approval,
recommendation, the rendering of advice, investigation or otherwise' ").
The participation of the lawyer must be more than general supervisory
duties or perfunctory approval or disapproval of an employee's actions. In
discussing the scope of "substantial responsibility" under DR 9-101(B). ABA
Formal Opinion No. 342 states:
As used in DR 9-101(B), "substantial responsibility" envisages a much closer and more
direct relationship than that of a mere perfunctory approval or disapproval of the matter
in question. It contemplates a responsibility requiring the official to become personally
involved to an important, material degree in the investigative or deliberate processes
regarding the transactions or facts in question.
Approved by the Alaska Bar Association Ethics Committee on November 3,
1994.
Adopted by the Board of Governors on January 13, 1995.
Endnotes:
1. (E.Op. No. 95-2) Rule 1.11(a) provides:
Except as law may otherwise expressly permit, a lawyer shall not
represent a private 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 consents after consultation.
No lawyer in a firm with which that lawyer is associated may knowingly
undertake or continue representation in such a matter unless: (1) the
disqualified lawyer is screened from any participation in the matter and
is apportioned no part of the fee there- from; and (2) written notice is
promptly given to the appropriate government agency to enable it to
ascertain compliance with the provisions of this rule.

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2. DR 9-101(B) provided: "A lawyer shall not accept private employment in a
   matter in which he had substantial responsibility while he was a public
   employee."
3. AS 39.52.180 and 9 AAC 52.100 establish a substantially similar
   standard of conduct for all public officers of the state, which applies for
   two years following termination of state service. Attorneys are not
   relieved of their ethical obligation by the expiration of that time period.

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