Section 4.4: Government Lawyers, Judges, and Mediators

Government Lawyers, Judges, and Mediators (Rules 1.11, 1.12)

Lawyers who transition between government service and private practice, or who serve in adjudicative roles (such as judges, arbitrators, and mediators) and then return to advocacy, are subject to special conflict of interest rules. These rules balance two competing policy goals: protecting public trust in the integrity of government and judicial offices, and ensuring that the government can recruit talented lawyers who are not permanently barred from returning to private practice.

Former Government Lawyers moving to Private Practice (Rule 1.11(a)-(b))

A lawyer who has formerly served as a public officer or employee of the government must maintain the confidentiality of information obtained during public service. Under Rule 1.11(a)(2), the lawyer is subject to a specific conflict rule:

• The Standard: The lawyer shall not 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.

Defining "Matter" (Rule 1.11(e))

For the purpose of government conflicts, a "matter" is defined narrowly. It includes any judicial or other proceeding, application, request for a ruling, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter involving a specific party or parties.

Critical Exception: General rulemaking, legislative drafting, or the formulation of general policy is not a "matter" under Rule 1.11. For example, if a government lawyer drafts a new environmental regulation governing carbon emissions, that regulation is a rule of general applicability. The lawyer may later enter private practice and represent a private client challenging the validity of that regulation. However, if the lawyer was personally and substantially involved in an enforcement action (a specific matter) against a particular refinery under that regulation, they cannot represent that refinery in private practice.

Personal and Substantial vs. Official Responsibility: A supervisory government lawyer who simply had official administrative responsibility over a case but did not personally work on it is not considered to have participated "personally and substantially" in that case. To trigger the conflict, the lawyer must have been directly involved in the decision-making process or active legal work. This is a crucial distinction for the MPRE, as the examiners often test the difference between having supervisory authority and having personal, substantial involvement. Merely signing off on a colleague's work as a standard administrative step may constitute personal and substantial participation, whereas simply having a case assigned to one's department does not.

Firm Screening to Avoid Imputation (Rule 1.11(b))

If a former government lawyer is disqualified under Rule 1.11(a), the lawyer’s firm is also disqualified unless the firm timely implements the following screening measures (government consent is not required for the firm to represent the client, provided these conditions are met):

1. The disqualified lawyer is timely screened from any participation in the matter;
2. The disqualified lawyer receives no part of the fee from the matter; and
3. Written notice is promptly given to the appropriate government agency to enable it to ascertain compliance.

Confidential Government Information (Rule 1.11(c))

A former government lawyer who possesses "confidential government information" about a person (acquired while in government service) 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.

• Definition: "Confidential government information" is information obtained under government authority which the government is prohibited by law from disclosing or has a privilege not to disclose, and which is not otherwise public.
• Imputation: This disqualification is imputed to the firm, but the firm can overcome it if the disqualified lawyer is timely screened and receives no part of the fee. This rule prevents government lawyers from using the coercive power of the government to gather information about a private citizen or corporation and then utilizing that information for the benefit of a private client in subsequent litigation. Note that this rule applies only to information actually acquired by the lawyer while in government service. It does not apply to information that could be obtained through ordinary discovery or public records.

Private Lawyers entering Government Service (Rule 1.11(d))

A lawyer currently serving as a public officer or employee must comply with Rules 1.7 and 1.9. Furthermore, the lawyer shall not participate in a matter in which the lawyer participated personally and substantially while in private practice, unless the government agency gives its informed consent, confirmed in writing. This ensures that the lawyer does not use their public position to favor former clients or private interests, preserving the neutrality and integrity of the public sector. Additionally, current government officers are subject to Rule 1.11(d)(2)(i), which prevents them from participating in matters where they have a financial interest or where their former clients are involved, unless a waiver is obtained.

Job Negotiations

A current government lawyer is strictly prohibited from negotiating for private employment with any person who is involved as a party or as a lawyer for a party in a matter in which the government lawyer is participating personally and substantially.

Former Judges, Arbitrators, Mediators, and Law Clerks (Rule 1.12)

Lawyers who have served in an adjudicative capacity face strict conflict rules when they return to private practice.

Adjudicative Conflicts (Rule 1.12(a))

A lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator, mediator, or other third-party neutral, or as a law clerk, unless all parties to the proceeding give informed consent, confirmed in writing. Unlike former government lawyers whose conflicts can be bypassed if the firm implements proper screening (without requiring government consent), a former judge's or mediator's conflict disqualifies the entire firm unless the screen is set up, notice is given to the parties and the appropriate tribunal. This ensures that the court system itself is kept aware of the potential conflict. Furthermore, note that the rule applies to any "third-party neutral," which includes evaluators, settlement conference judges, and special masters.

Exception for Multimember Arbitrations: An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party.

Law Clerk Job Negotiations (Rule 1.12(b))

Unlike judges and other adjudicative officers (who are strictly barred from negotiating for private employment with parties or lawyers appearing before them), a law clerk may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially. However, the law clerk must first notify the judge or adjudicative officer before commencing negotiations.

Firm Screening (Rule 1.12(c))

If a lawyer is disqualified under Rule 1.12(a), the firm is also disqualified unless the disqualified lawyer is timely screened, receives no part of the fee, and written notice is promptly given to the parties and the appropriate tribunal.