DCBAR June 2002

When does a former government lawyer's prior work count as 'personal and substantial' participation that bars later private representation in the same matter under Rule 1.11?

Short answer: The opinion concludes that a former EPA lawyer who only drafted status reports and discussed the timing of an ongoing rulemaking did not participate 'personally and substantially' in the related litigation, because his role was administrative and peripheral rather than on the merits, so Rule 1.11 does not bar him from later challenging the agency's final rules. In a second inquiry, where witnesses disagreed about how involved a former Justice Department official had been in a desegregation case, the Committee could not resolve the facts and concluded the prudent course was to decline the representation.

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This page answers the general question as of 2002. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

Opinion 315 (adopted June 2002) answers two inquiries under Rule 1.11, which bars a lawyer from accepting private employment in a matter the same as or substantially related to one in which the lawyer "participated personally and substantially" as a government employee.

The first inquiry came from a former EPA Office of General Counsel attorney who had worked on a set of Clean Air Act rules and, while the related challenges sat in abeyance, helped Justice Department lawyers draft periodic status reports to the D.C. Circuit and joined discussions with opposing counsel about the timing of the agency's final rulemaking. He had since joined a private party that challenged the regulations and asked whether Rule 1.11 barred him from future litigation over the final rules. The opinion concludes it does not. Rulemaking of general applicability is not a "matter" under Rule 1.11(g) and Comment [3], so his work drafting the regulations does not disqualify him. As for the litigation itself, the opinion (citing its prior Opinions 84, 111, and 177) explains that "substantial" turns on whether the lawyer's involvement was "direct, extensive, and substantive, not peripheral, clerical, or formal," and whether it reached the merits of the case. Drafting status reports on the rulemaking and discussing timing, while the litigation was inactive, did not involve him in the merits and amounted to no more than administrative or peripheral participation. The opinion cautions (footnote 7) that timing discussions could be substantial in other contexts, but were not here.

The second inquiry came from a former senior Justice Department Civil Rights Division official asked to represent a school board in the current phase of a desegregation case that was active in the early 1980s. The problem was a factual dispute: the official recalled attending a single meeting and characterized his role as peripheral, while several attorneys who handled the case recalled him participating in strategy and policy discussions and questioning the government's expert. The Justice Department's ethics official, crediting those most closely involved, recommended against the representation to avoid violating 18 U.S.C. section 207(a). The opinion explains that if the official's involvement reached the merits (multiple meetings, conceptual or policy discussions, specific questions), it would likely be "personal and substantial," but if he merely attended and listened at one meeting, it likely would not. Because the Committee is not a fact-finding body and the conflicting recollections cannot be resolved, especially after eighteen years, the opinion concludes the only prudent course is for the official to decline the representation rather than risk a Rule 1.11 violation.

In practice

Under the D.C. rules as they stood at the time of the opinion, the opinion concludes that whether Rule 1.11 disqualifies a former government lawyer turns on a factual inquiry into what the lawyer actually did: participation that is direct and reaches the merits is "substantial," while administrative, clerical, peripheral, or general-rulemaking work is not. On that basis it concludes the former EPA lawyer may take the private representation.

The opinion concludes that where the extent of a lawyer's past government involvement is genuinely disputed and cannot be resolved, the prudent course is to decline the new representation, because the Committee cannot find facts and the lawyer risks violating Rule 1.11 (and the parallel federal statute, 18 U.S.C. section 207). It also notes that even when Rule 1.11 does not bar the work, the former government lawyer must still preserve government confidences under Rule 1.6(f) and guard professional judgment under Rule 1.7(b)(4). Because the opinion predates later rule developments, verify the current D.C. rules before relying on specific requirements.

Common questions

Q: Does working on a government rulemaking bar me from later challenging the rule for a private client?

A: The opinion concludes no. Rulemaking of general applicability is not a "matter" under Rule 1.11, so drafting or developing regulations does not, by itself, disqualify the former government lawyer from later litigation over those rules.

Q: What makes prior government participation "substantial" under Rule 1.11?

A: The opinion concludes the test is whether the involvement was direct, extensive, and substantive (reaching the merits) rather than peripheral, clerical, or formal; the focus is on what the lawyer actually did and knew, not formal authority.

Q: Was drafting litigation status reports "substantial" participation?

A: The opinion concludes it was not on these facts, because the reports and the related timing discussions concerned the progress of the rulemaking and did not involve the lawyer in the merits of the inactive litigation.

Q: What should a lawyer do when his past role is disputed?

A: The opinion concludes that because the Committee cannot resolve conflicting recollections, the prudent course is to decline the representation rather than risk violating Rule 1.11 and 18 U.S.C. section 207.

Background and rules framework

The opinion interprets D.C. Rule 1.11 (successive government and private employment), including the Rule 1.11(g) and Comment [3] limitation that "matter" requires specific parties (so general rulemaking is excluded), and the "personal and substantial" standard developed in prior D.C. Opinions 84, 106, 111, 177, and 297. It references the federal revolving-door statute (18 U.S.C. section 207), the substantial-relationship test of Brown v. D.C. Board of Zoning Adjustment, and the continuing duties under Rules 1.6(f) and 1.7(b)(4).

Citations and references

Rules of Professional Conduct:

D.C. RPC 1.11 / Model Rule 1.11 (successive government and private employment; "matter"; "personal and substantial")
D.C. RPC 1.6(f), 1.7(b)(4) / Model Rules 1.6, 1.7 (continuing duties of the former government lawyer)

Statutes:

18 U.S.C. section 207(a) (federal post-employment restrictions); 5 C.F.R. section 2637.201(d)(1)

Cases:

Brown v. District of Columbia Board of Zoning Adjustment, 486 A.2d 37 (D.C. 1984) (en banc) (substantial-relationship test)

Other opinions cited:

D.C. Ethics Opinions 84, 106, 111, 177, 297; ABA Formal Op. 342 (1975)

Source

Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-315

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