Special Rules for Government Lawyers, Judges, and Other Adjudicators - June 30 & July 6 Flashcards
In general, may a lawyer who formerly served as an employee of the government subsequently represent a client in connection with a matter in which the lawyer personally and substantially participated while working for the government? (Q)
No. In general, a lawyer who formerly served as a public officer or government employee is prohibited from representing a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee. This prohibition applies unless the appropriate government agency gives its informed consent, in writing, to the representation.
The term “personally and substantially” is used to distinguish a lawyer who actually worked on a matter from one who did not, e.g., a lawyer who had administrative responsibility for the office in which a matter was pending but who did not take a role in the matter itself.
In general, if a former government lawyer is disqualified from representing a client in connection with a matter that the lawyer worked on while in government, is the lawyer’s law firm likewise disqualified? (Q)
Yes. In general, if a former government lawyer is disqualified from representing a client in connection with a matter that the lawyer worked on while in government, the lawyer’s law firm is likewise disqualified.
However, this disqualification may be avoided if:
the lawyer is screened from participating in the matter and receives no part of the fee, and
the firm gives prompt written notice to the relevant government agency to enable the agency to determine compliance with this rule.
For purposes of determining whether a lawyer who was a government employee or public officer is able to represent a private client, what is meant by the term confidential government information? (Q)
The term confidential government information means information obtained under governmental authority that (1) the government may not legally disclose to the public, or (2) the government is privileged to withhold from the public and which in either case (3) is not otherwise available to the public.
If a lawyer acquires confidential government information about a person while the lawyer is working as a government employee or public officer, is the lawyer restricted from later representing a client who is adverse to that person? (Q)
Yes. If a lawyer acquires confidential government information about a person while working as a government employee or public officer, the lawyer is prohibited from later representing a client who is adverse to that person in a matter in which the information could be used to the material disadvantage of that person.
This prohibition extends to the lawyer’s firm, unless (1) the lawyer is screened from participating in the matter and (2) receives no part of the fee.
A government lawyer oversaw an investigation into a business for alleged improper disposal of toxic waste. As part of the investigation, the government lawyer learned that a contractor oversaw the improper dumping and also learned information about the contractor that qualified as confidential government information. The government lawyer subsequently left the government and began working at a firm. The firm was contacted by a woman who wanted the firm’s assistance in suing the contractor for harms inflicted upon the woman as a result of the contractor’s oversight of the improper dumping of toxic waste.
Is it possible for the firm to take on the representation of the woman? (Q)
Yes. It is possible for the firm to represent the woman. If a lawyer acquired confidential government information about a person when the lawyer was a government employee, the lawyer may not subsequently represent a private client whose interests are adverse to that person in a matter in which the information could be used to that person’s material disadvantage. However, a firm with which the lawyer is associated may represent the client if the lawyer is properly screened from any participation in the matter and receives none of the fee.
Here, the government lawyer learned confidential information about the contractor when the lawyer worked with the government, the woman’s interests were adverse to the contractor’s, and the information could disadvantage the contractor. Thus, the firm may represent the woman, but only if the lawyer is screened from the matter and receives none of the fee.
In general, is a lawyer serving as a public officer or government employee subject to the normal duties of confidentiality regarding former and prospective clients? (Q)
Yes. In general, a lawyer who is serving as a public officer or government employee is subject to the normal duties of confidentiality regarding former and prospective clients. These rules are not altered by the lawyer entering government service.
In general, may a lawyer serving as a public officer or government employee work on a matter while in government in which the lawyer participated before entering government? (Q)
No. In general, a lawyer who is serving as a public officer or government employee may not participate in a matter on which the lawyer personally and substantially participated before entering government. This prohibition applies unless the appropriate government agency gives its informed consent, in writing, to the lawyer’s participation.
In general, may a lawyer serving as a public officer or government employee negotiate for private employment with a party or a lawyer in a matter in which the lawyer is participating? (Q)
No. In general, a lawyer who is serving as a public officer or government employee may not negotiate for employment with a party or a lawyer in a matter in which the lawyer is personally and substantially participating.
However, this prohibition does not apply to a lawyer working as a law clerk for a judge, arbitrator, or other adjudicative officer, provided that the clerk notifies the judge or other officer of the negotiations.
A government lawyer was overseeing an investigation into a business for improper dumping of toxic waste. The opposing lawyer worked at a prestigious private law firm in town and represented the business in the governmental investigation run by the government lawyer. The opposing lawyer came to respect the government lawyer and asked whether the government lawyer would come work at the opposing lawyer’s firm. The opposing lawyer offered him a lucrative salary. The government lawyer asked for the lucrative salary plus additional benefits.
Has the government lawyer committed an ethical violation? (Q)
Yes. The government lawyer has committed an ethical violation. A lawyer currently serving as a government employee may not negotiate for private employment with a lawyer for a party in a matter in which the government lawyer is participating personally and substantially. An exception to this rule concerns law clerks working for judges or other adjudicative officers, who may seek private employment.
Here, the government lawyer was personally and substantially participating in the investigation into the opposing lawyer’s client. Accordingly, he was not allowed to negotiate for private employment with the opposing lawyer. Although the government lawyer could not prevent the opposing lawyer from offering him a job, he began the process of negotiating for private employment when he requested the offered salary plus benefits. Thus, the government lawyer committed an ethical violation.
In general, may a lawyer represent a client in a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, as a law clerk to a judge or other adjudicative officer, or as a third-party neutral (e.g., an arbitrator or mediator)? (Q)
No. In general, a lawyer may not represent a client in a matter in which the lawyer personally and substantially participated as:
a judge or other adjudicative officer;
a law clerk to a judge or other adjudicative officer; or
a third-party neutral, such as an arbitrator or mediator.
However, this prohibition does not apply if all parties to the proceeding give written, informed consent to the representation.
In general, if a lawyer is disqualified from a matter because of the lawyer’s work as a judge, other adjudicative officer, third-party neutral, or law clerk, is the lawyer’s firm also disqualified? (Q)
Yes. In general, the disqualification of a lawyer due to the lawyer’s prior work as a judge, adjudicative officer, third-party neutral, or law clerk extends to the lawyer’s firm. Thus, no lawyer in the firm may knowingly continue or undertake representation in the matter.
However, this prohibition may be avoided if:
the disqualified lawyer is screened from participating in the matter and receives no part of the fee, and
prompt written notice is given to the parties and to any relevant tribunal to enable them to determine compliance with this rule. (Q)
May a lawyer negotiate for employment with a party or a lawyer in a matter in which the lawyer is personally and substantially participating as a judge, adjudicative officer, or third-party neutral? (Q)
No. A lawyer may not negotiate for employment with a party or a lawyer in a matter in which the lawyer is personally and substantially participating as a judge, adjudicative officer, or third-party neutral (e.g., an arbitrator or mediator).
However, this prohibition does not apply to a law clerk to a judge or other adjudicative officer, provided that the clerk first notifies the judge or officer of the negotiations.
