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Formal Ethics Opinion 97-409 |
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Conflicts of Interest: Successive Government and Private Employment
The conflict of interest obligations of a former government lawyer under the Model Rules of Professional Conduct are determined by Rule 1.11 and not by Rule 1.9(a) and (b). A former government lawyer is, however, subject to the provisions of Rule 1.9(c), which prohibits the use of information relating to her representation of the government to the disadvantage of her former government client where the information has not become generally known, and the disclosure of such information, except as permitted or required by Rules 1.6 and 3.3.
Under Rule 1.11, a former government lawyer is disqualified from representing private clients where she "participated personally and substantially as a public officer or employee" in the same "particular matter" at issue in the subsequent representation, whether or not she would be adverse to her former government client; she is not forbidden from representing private parties in matters in which she did not so participate, or in any matters not involving "a discrete and isolatable transaction or set of transactions between identifiable parties," except where she has obtained "confidential government information" about an adverse third party. See Rule 1.11(a) and (b); ABA Formal Opinion 342.
A former government lawyer who is personally disqualified from representing a private client in a matter may be screened pursuant to Rule 1.11(a) to enable other lawyers in her new firm to undertake the representation, whether her disqualification arises under Rule 1.11(a) or Rule 1.9(c).
A lawyer formerly employed by a government claims administration agency is not disqualified under Rule 1.11 from representing private claimants before the agency except in connection with particular claims she personally handled while in government service. She may also represent a private party in a challenge to generally applicable agency rules, even though she was herself personally involved in the development and implementation of those rules, subject only to the constraints imposed by Rule 1.9(c) on her use or disclosure of information relating to her representation of the government that has not become generally known. In any case, if the lawyer is herself personally disqualified, members of her firm may undertake the representation if she is appropriately screened.
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