Duty of Loyalty (Revolving Door Conflicts)

Question 1

Revolving Door Conflicts

Answer 1

These are for gov employees and third party neutrals.

There’s a unique and narrow standard of “personal and substantial involvement” applying to these gov situations. Trying to apply the broader “substantial relation” rule to the gov as a client would be so broad that it would conflict lawyers out of a ton of private sector work. So it’s a policy decision to use narrow scope for gov conflicting.

Question 2

Government Work to Private Sector

Answer 2

If you leave the gov, you must not rep a private client in a “matter” in which you participated PERSONALLY AND SUBSTANTIALLY while in gov service
-> Exception: unless the gov agency gives informed consent confirmed in writing.

Apply in Hypo 5D: As EEOC lawyer, you litigated against Haliburton. May you rep Haliburton in that same case without EEOC’s consent? No. But what if you wrote regs defining fair pay while at the EEOC: can you now litigate the meaning of those regs at the new firm? Yes. Because the regs are not a “matter” which involves “SPECIFIC FACTS AND PARTIES”. Matter is narrow.

Question 3

Government Work to Private Sector - Imputation and Screening

Answer 3

Others at new private firm are not disqualified if SCREENING TRIFECTA:
- Disqualified lawyer SCREENED
- and there is NO FEE SHARING
- NOTICE given to gov agency

Question 4

Conflict Based on Information Gained During Government Service

Answer 4

After obtaining confidential gov info about a person, can’t rep private client with interest adverse to that person if the confidential info could be used agains that person you got the info about while you worked at the gov. This is info you got under gov authority that isn’t publicly available.

Imputation of that conflict to others at your firm can be cured with proper screening.

Question 5

Private Sector to Government Work

Answer 5

If you participated PERSONALLY AND SUBSTANTIALLY in a matter while in private practice, you cannot work on the same matter later for the gov.
-> Exception: unless you get consent by your gov employer confirmed in writing

New employer/government must approve. You will have duties to former client from private practice. Use regular private practice rules for that former client.

Question 6

Prior Involvement as Judge, Law Clerk, or 3rd Party Neutral

Answer 6

Can’t rep any party as lawyer in same matter without consent of all parties

Imputed disqualification of your colleagues can be cured by screening you and giving written notice to all the parties and the appropriate tribunal (where you did gov work)

CA difference: Screening of prior MEDIATOR or SETTLEMENT JUDGE won’t work, those colleagues CANNOT be screened to avoid imputation

Question 7

Gov Employee or 3rd Party Neutral Negotiating for Employment

Answer 7

Lawyer working on matter in these roles can’t negotiate for private employment with parties or attorneys.

Exception: law clerks