NYSBA 2020-10-26

Can a government lawyer apply for and negotiate a private-sector job with a company that is an adverse party in a matter the lawyer is currently handling for the agency?

Short answer: No. The opinion concludes that a lawyer currently serving as a government employee may not negotiate for private employment with a party the lawyer is personally and substantially handling a matter against, and neither the agency nor the employer can waive that bar; the lawyer may negotiate once the matter ends or after leaving government.

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 Not binding precedent.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 at the bottom of this page) is the authoritative source for any reliance.

NYSBA Ethics Opinion 1205: Government Employee Negotiating for Private Employment

Short answer: The opinion concludes that a lawyer serving as in-house counsel for a federal agency may not negotiate for private employment with an organization that is an adverse party in litigation the lawyer is participating in personally and substantially.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's view of New York's Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

Plain-English summary

The inquirer is in-house counsel for a federal agency and is personally and substantially involved in litigation in which a private employer is an adverse party. The inquirer wants to apply for a job with that private employer, states that confidential information from the matter did not prompt the interest, and says that if hired the inquirer would recuse from the matter. The committee notes its jurisdiction is limited to the New York Rules and assumes compliance with other applicable law without analyzing it.

The opinion concludes the proposed conduct is prohibited by Rule 1.11(d)(2), which bars a lawyer currently serving as a public officer or employee from negotiating for private employment with any person who is involved as a party (or as a party's lawyer) in a matter in which the lawyer is participating personally and substantially. The committee applies the Rule 1.0 definitions: "person" includes a corporation or organization, and "matter" is defined broadly to include litigation and similar proceedings. Because the inquirer is a current government employee seeking to negotiate with a party to a matter the inquirer handles personally and substantially, the rule applies on its face.

The committee adds that neither the recusal plan nor the absence of any link to confidential information avoids the bar, and that the restriction cannot be waived by the government or the private employer. It contrasts Rule 1.11(d)(2), which says nothing about consent, with Rule 1.11(a)(2), which expressly allows an agency to give informed consent to a former government lawyer's conflict. The prohibition is not permanent: once the matter concludes, or once the inquirer leaves government service, the inquirer may negotiate for the position, and if later hired must comply with Rule 1.11(a) through (c).

In practice

Under this opinion, a lawyer who is a current government employee and is personally and substantially involved in a matter may not, while that involvement continues, negotiate for a job with a party (or a party's lawyer) on the other side of that matter. The opinion holds that, under the New York rule as it stood at the time, the bar is absolute while the involvement lasts: it cannot be cured by recusal, by an absence of confidential-information taint, or by consent from either side. Per the opinion, the bar lifts when the matter ends or when the lawyer leaves government service.

Common questions

Q: Can a government lawyer apply for a job with a company they are litigating against for the agency?

A: Not while the lawyer is personally and substantially involved in the matter. Per the opinion, Rule 1.11(d)(2) prohibits a current public employee from negotiating private employment with a party to such a matter.

Q: Does it help that the lawyer would recuse from the matter if hired?

A: No. The opinion states that a plan to recuse, and the fact that the job interest is unconnected to confidential information, do not avoid the Rule 1.11(d)(2) prohibition.

Q: Can the agency or the employer consent to waive the conflict?

A: No. Per the opinion, Rule 1.11(d)(2) does not provide for consent, unlike Rule 1.11(a)(2), which expressly allows agency consent for a former government lawyer.

Q: When can the lawyer negotiate for the job?

A: Per the opinion, once the matter in which the lawyer is participating concludes, or once the lawyer leaves the agency and is no longer a government employee. A later hire must still comply with Rule 1.11(a) through (c).

Background and rules framework

The opinion interprets New York Rule 1.11(d)(2), which restricts the activities of a lawyer currently serving as a public officer or employee, read together with the Rule 1.0(l) definition of "matter" and the Rule 1.0(n) definition of "person." This corresponds to ABA Model Rule 1.11 (special conflicts of interest for current and former government officers and employees).

Citations and references

Rules of Professional Conduct:

New York Rules of Professional Conduct 1.11(d)(2), 1.0(l), 1.0(n); Cmt. [4] to Rule 1.11
ABA Model Rule 1.11 (analogue)

Other opinions cited:

N.Y. State 1148 (2018): scope of jurisdiction; former government lawyer adverse to former employer
ABA Formal Op. 96-400: negotiating for new employment and Rules 1.11 and 1.12

Source

Landing page: https://nysba.org/ethics-opinion-1205/