Can a government lawyer look for outside work, and later take a job, advocating to change the very laws the lawyer helped administer?

Plain-English summary

The inquirer is an IRS lawyer whose work has included drafting certain regulatory provisions. The lawyer wants to seek new employment, including positions aimed at changing the current tax code, and as part of that effort wants to seek funding and recruit academics and practitioners into a tax-reform project. The committee analyzes only the New York Rules and assumes the conduct otherwise complies with applicable law.

On the lawyer's current job-seeking activities, the committee identifies four provisions and concludes none poses a significant limitation. Rule 1.6 bars disclosing the IRS's confidential information, but confidential information does not ordinarily include a lawyer's own legal knowledge or generally known information, and lawyers routinely change jobs without disclosing client confidences. Rule 1.11(d)(2) bars negotiating private employment with a person involved in a matter the lawyer is handling personally and substantially, but Rule 1.11(e) excludes "agency rulemaking functions" from the definition of "matter," so work on generally applicable regulations falls outside it. Rule 1.7(a)(2) would create a personal-interest conflict only if the lawyer's views on reform were so strong that they posed a significant risk to the lawyer's judgment in serving the IRS; in most cases that conflict would be consentable, and Rule 6.4 expressly allows participation in law-reform organizations even where reform may affect a client's interests. Rule 1.1(c)(2) (not intentionally prejudicing or damaging a client) is not triggered, because merely exploring a reform-advocacy group does not prejudice or damage the IRS.

On the lawyer's future activities after leaving the IRS, the committee applies the three Rule 1.11 restrictions on former government lawyers. Rule 1.11(a)(1) requires compliance with Rule 1.9(c) on using or revealing a former client's confidential information, but reform advocacy does not necessarily require using IRS confidences. Rule 1.11(c) bars representing a private client adverse to a person about whom the lawyer holds confidential government information, and no such adversity is presented. Rule 1.11(a)(2) bars handling, without agency consent, a matter the lawyer worked on personally and substantially in office, but the rulemaking exclusion means prior regulatory work does not bar later reform work.

In practice

Under this opinion, a sitting government lawyer is not barred by the Rules from organizing a project to advocate changing the laws the lawyer helps administer, and may continue with the project after leaving the agency. The committee identifies the operative limits as fact-specific rather than categorical: the lawyer must not reveal the agency's confidential information (Rule 1.6 / Rule 1.9(c)), must avoid a Rule 1.7(a)(2) personal conflict if reform views would significantly impair the lawyer's judgment for the agency (a conflict the committee describes as usually consentable), and must observe the Rule 1.11 limits, which here are largely inapplicable because the rulemaking-function exclusion removes the lawyer's regulatory work from the definition of "matter."

Common questions

Q: Can a government lawyer recruit funders and collaborators for a project to change the law while still on the job?

A: Yes, on these facts. The committee found none of Rules 1.6, 1.11(d)(2), 1.7, or 1.1(c)(2) significantly limits a tax lawyer's effort to assemble a tax-reform group, because work on generally applicable regulations is not a "matter" and exploring such a group does not prejudice the agency (¶¶ 5-9).

Q: Does negotiating for a private reform job conflict with a government lawyer's duties?

A: Generally not for rulemaking work. Rule 1.11(d)(2) bars negotiating employment with someone involved in a matter the lawyer is handling, but Rule 1.11(e) excludes agency rulemaking functions from "matter," so regulatory drafting does not trigger the bar (¶ 7).

Q: After leaving the agency, can the lawyer advocate to change regulations the lawyer once drafted?

A: Yes. Rule 1.11(a)(2) bars later handling a "matter" worked on in office, but rulemaking is excluded from "matter," so prior regulatory work does not bar later reform advocacy, subject to protecting confidential information (¶ 13).

Background and rules framework

The opinion interprets the New York conflict and confidentiality rules as applied to a government lawyer in transition. The core provisions are Rule 1.11 (Model Rule 1.11) on current and former government lawyers, which keys many of its limits to the Rule 1.0(l) definition of "matter" and expressly excludes "agency rulemaking functions"; Rule 1.6 (Model Rule 1.6) and Rule 1.9(c) (Model Rule 1.9) on confidential information; and Rule 1.7(a)(2) (Model Rule 1.7) on personal-interest conflicts, reinforced by Rule 6.4 on participation in law-reform activities.

Citations and references

Rules of Professional Conduct:

• New York Rule 1.11 (Model Rule 1.11): current and former government lawyers; rulemaking-function exclusion from "matter"
• New York Rule 1.6 (Model Rule 1.6): confidential information
• New York Rule 1.9(c) (Model Rule 1.9): use or disclosure of a former client's confidences
• New York Rule 1.7(a)(2) (Model Rule 1.7): personal-interest conflicts
• New York Rule 1.1(c)(2) (Model Rule 1.1): not intentionally prejudicing or damaging the client
• New York Rule 6.4: participation in law-reform organizations

Other opinions cited:

• N.Y. State 968 (2013): scope of Rule 1.1(c)(2) for government lawyers

See also

• NY State Bar Op. 1205: Government lawyer negotiating private employment with an adverse party
• NY State Bar Op. 1216: Government lawyer consulting for a private software vendor
• NY State Bar Op. 1198: Former government lawyer responding to a subpoena for confidential information
• NY State Bar Op. 1274: Conflicts of interest, former clients, government lawyers

Source

• Landing page: https://nysba.org/ethics-opinion-1158/