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Rule 4-1.11 Special Conflicts of Interest for Former and Current Government
Officers and Employees
(a) Representation of Private Client by Former Public Officer or Employee.
A lawyer who has formerly served as a public officer or employee of the
government:
(1) is subject to rule 4-1.9(b); and
(2) shall not otherwise represent a 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 gives its
informed consent, confirmed in writing, to the representation.
(b) Representation by Another Member of the Firm. When a lawyer is
disqualified from representation under subdivision (a), 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 timely screened from any
participation in the matter and is directly apportioned no part of the fee
therefrom; and
(2) written notice is promptly given to the appropriate
government agency to enable it to ascertain compliance with the provisions of
this rule.
(c) Use of Confidential Government Information. A lawyer having
information that the lawyer knows is confidential government information about a
person acquired when the lawyer was a public officer or employee may not
represent a private client whose interests are adverse to that person in a
matter in which the information could be used to the material disadvantage of
that person. As used in this rule, the term "confidential government
information" means information that has been obtained under governmental
authority and which, at the time this rule is applied, the government is
prohibited by law from disclosing to the public or has a legal privilege not to
disclose and which is not otherwise available to the public. A firm with which
that lawyer is associated may undertake or continue representation in the matter
only if the disqualified lawyer is screened from any participation in the matter
and is apportioned no part of the fee therefrom.
(d) Limits on Participation of Public Officer or Employee. A lawyer
currently serving as a public officer or employee:
(1) is subject to rules 4-1.7 and 4-1.9; and
(2) shall not:
(A) participate in a matter in
which the lawyer participated personally and substantially while in private
practice or nongovernmental employment, unless the appropriate government agency
gives its informed consent; or
(B) negotiate for private
employment with any person who is involved as a party or as attorney for a party
in a matter in which the lawyer is participating personally and substantially.
(e) Matter Defined. As used in this rule, the term "matter" includes:
(1) any judicial or other proceeding, application, request
for a ruling or other determination, contract, 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.
COMMENT
A lawyer who has served or is currently serving as a
public officer or employee is personally subject to the rules of professional
conduct, including the prohibition against concurrent conflicts of interest
stated in rule 4-1.7. In addition, such a lawyer may be subject to statutes and
government regulations regarding conflict of interest. Such statutes and
regulations may circumscribe the extent to which the government agency may give
consent under this rule. See terminology for definition of informed consent.
Subdivisions (a)(1), (a)(2), and (d)(1) restate the
obligations of an individual lawyer who has served or is currently serving as an
officer or employee of the government toward a former government or private
client. Rule 4-1.10 is not applicable to the conflicts of interest addressed by
this rule. Rather, subdivision (b) sets forth a special imputation rule for
former government lawyers that provides for screening and notice. Because of the
special problems raised by imputation within a government agency, subdivision
(d) does not impute the conflicts of a lawyer currently serving as an officer or
employee of the government to other associated government officers or employees,
although ordinarily it will be prudent to screen such lawyers.
Subdivisions (a)(2) and (d)(2) apply regardless of whether a
lawyer is adverse to a former client and are thus designed not only to protect
the former client, but also to prevent a lawyer from exploiting public office
for the advantage of another client. For example, a lawyer who has pursued a
claim on behalf of the government may not pursue the same claim on behalf of a
later private client after the lawyer has left government service, except when
authorized to do so by the government agency under subdivision (a). Similarly, a
lawyer who has pursued a claim on behalf of a private client may not pursue the
claim on behalf of the government, except when authorized to do so by
subdivision (d). As with subdivisions (a)(1) and (d)(1), rule 4-1.10 is not
applicable to the conflicts of interest addressed by these subdivisions.
This rule represents a balancing of interests. On the one
hand, where the successive clients are a government agency and another client,
public or private, the risk exists that power or discretion vested in that
agency might be used for the special benefit of the other client. A lawyer
should not be in a position where benefit to the other client might affect
performance of the lawyer's professional functions on behalf of the government.
Also, unfair advantage could accrue to the other client by reason of access to
confidential government information about the client's adversary obtainable only
through the lawyer's government service. On the other hand, the rules governing
lawyers presently or formerly employed by a government agency should not be so
restrictive as to inhibit transfer of employment to and from the government. The
government has a legitimate need to attract qualified lawyers as well as to
maintain high ethical standards. Thus, a former government lawyer is
disqualified only from particular matters in which the lawyer participated
personally and substantially. The provisions for screening and waiver in
subdivision (b) are necessary to prevent the disqualification rule from imposing
too severe a deterrent against entering public service. The limitation of
disqualification in subdivisions (a)(2) and (d)(2) to matters involving a
specific party or parties, rather than extending disqualification to all
substantive issues on which the lawyer worked, serves a similar function.
When a lawyer has been employed by 1 government agency and
then moves to a second government agency, it may be appropriate to treat that
second agency as another client for purposes of this rule, as when a lawyer is
employed by a city and subsequently is employed by a federal agency. However,
because the conflict of interest is governed by subdivision (d), the latter
agency is not required to screen the lawyer as subdivision (b) requires a law
firm to do. The question of whether 2 government agencies should be regarded as
the same or different clients for conflict of interest purposes is beyond the
scope of these rules. See rule 4-1.13 comment, government agency.
Subdivisions (b) and (c) contemplate a screening arrangement.
See terminology (requirements for screening procedures). These subdivisions do
not prohibit a lawyer from receiving a salary or partnership share established
by prior independent agreement, but that lawyer may not receive compensation
directly relating the attorney's compensation to the fee in the matter in which
the lawyer is disqualified.
Notice, including a description of the screened lawyer's
prior representation and of the screening procedures employed, generally should
be given as soon as practicable after the need for screening becomes apparent.
Subdivision (c) operates only when the lawyer in question has
knowledge of the information, which means actual knowledge; it does not operate
with respect to information that merely could be imputed to the lawyer.
Subdivisions (a) and (d) do not prohibit a lawyer from
jointly representing a private party and a government agency when doing so is
permitted by rule 4-1.7 and is not otherwise prohibited by law.
For purposes of subdivision (e) of this rule, a "matter" may
continue in another form. In determining whether 2 particular matters are the
same, the lawyer should consider the extent to which the matters involve the
same basic facts, the same or related parties, and the time elapsed.
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