Can a former government lawyer represent a private client in a rulemaking he worked on while at the agency?

Plain-English summary

Opinion 297 (adopted March 2000) addressed a lawyer who, while at the U.S. Department of the Interior, advised on and helped negotiate a general rule implementing a federal statute through a negotiated rulemaking committee. Now in private practice, he wished to represent an Indian tribe in the same rulemaking, where some positions he had taken for the government might be adverse to the tribe's.

The committee first addressed the federal post-employment statute, 18 U.S.C. § 207, which lists "rulemaking" as a "particular matter" and would appear to apply. It explained that the Indian Self-Determination Act (25 U.S.C. § 450i(j)) creates an exception: a former federal employee retained by an Indian tribe is not subject to § 207 when representing the tribe, provided he gives written notice of his prior involvement to the agency, which the inquirer had done.

Turning to the Rules, the committee analyzed D.C. Rule 1.11(a), which flatly forbids later employment in a "matter" in which the lawyer participated personally and substantially as a public officer. The key was Rule 1.11(g), which limits "matter" to those involving a specific party or parties, and Comment [3], stating that the making of rules of general applicability ordinarily is not a "matter." Drawing on the Administrative Procedure Act's distinction between rulemaking and adjudication, and on prior Opinions 106 and 187, the committee concluded that this negotiated rulemaking, though conducted through a committee of identifiable participants, produced a rule of general applicability and so was not "particular to a specific party or parties." Rule 1.11 therefore did not per se bar the representation. The analysis did not end there: Rule 1.6 still protected confidences and secrets the lawyer gained as a government attorney, and using or revealing them was barred absent the agency's consent, which could make the representation impossible. The lawyer also had to assess under Rule 1.7 whether his responsibilities to his former agency client would adversely affect his judgment for the tribe and, if so, seek the tribe's informed consent.

Currency note

This opinion was issued in 2000, before the District of Columbia's adoption of the 2007 revisions to the 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: Did Rule 1.11 bar the former government lawyer from the rulemaking?

A: The opinion concluded no, not automatically. Because the rulemaking was of general applicability and not particular to specific parties, it was not a "matter" under Rule 1.11(g), so Rule 1.11(a)'s flat prohibition did not apply.

Q: Why is a general rulemaking treated differently from an adjudication?

A: The opinion explained that, drawing on the Administrative Procedure Act, a rulemaking produces a rule applying broadly to a generic class of persons, while an adjudication produces an order directed to particular parties; only the latter is ordinarily a "matter" particular to specific parties.

Q: Could the lawyer freely use what he learned at the agency?

A: The opinion concluded no. Rule 1.6 still protected the former agency's confidences and secrets; absent the agency's consent, the lawyer could not use or reveal them, which the committee said might preclude the representation.

Q: What did Rule 1.7 require before taking the case?

A: The opinion held the lawyer had to assess whether his responsibilities to his former agency client would or reasonably might adversely affect his professional judgment for the tribe, and if so, obtain the tribe's informed consent after full disclosure.

Background and rules framework

The opinion interpreted D.C. Rule 1.11 (successive government and private employment), focusing on Rule 1.11(a), the Rule 1.11(g) limitation of "matter" to those involving specific parties, and Comment [3]; Rule 1.6 (confidentiality, including the government-lawyer client provision in Rule 1.6(j)); and Rule 1.7 (conflict where the lawyer's responsibilities to a former client would adversely affect judgment, waivable under Rule 1.7(c)). It situated the rulemaking-versus-adjudication line in the Administrative Procedure Act (5 U.S.C. § 551) and the federal post-employment statute (18 U.S.C. § 207) as modified for tribal representation by 25 U.S.C. § 450i(j).

Citations and references

Rules of Professional Conduct:

• D.C. RPC 1.11 / Model Rule 1.11 (successive government and private employment)
• D.C. RPC 1.6 / Model Rule 1.6 (confidentiality; government-lawyer client)
• D.C. RPC 1.7 / Model Rule 1.7 (conflict of interest; informed consent)

Statutes:

• 18 U.S.C. § 207 (post-employment restrictions; "particular matter" includes rulemaking)
• 25 U.S.C. § 450i(j) (Indian Self-Determination Act exception for tribal representation)
• 5 U.S.C. § 551 (Administrative Procedure Act; rulemaking versus adjudication)

Cases:

• In re Sofaer, 728 A.2d 625 (D.C. 1999) (whether two matters substantially overlap)
• Laker Airways, Ltd. v. Pan Am World Airways, 103 F.R.D. 22 (D.D.C. 1984) (rulemaking generally not a "matter")

Other opinions cited:

• D.C. Ethics Opinions 106 (1981), 187 (1987)
• ABA Formal Op. 342

See also

• DC Ethics Op. 313: Same Client After Gov't Service
• DC Ethics Op. 315: Former Government Lawyer Conflicts
• ABA Formal Op. 509: Confidential Gov't Information

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-297