Rule 1.11. Special Conflicts of Interest for Former and Current Government Officers and Employees

(a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government:

(1) is subject to Rule 1.9(c); 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) When a lawyer is disqualified from representation under paragraph (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 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) Except as law may otherwise expressly permit, 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 timely screened from any participation in the matter and is apportioned no part of the fee therefrom.

(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee:

(1) is subject to Rules 1.7 and 1.9; and

(2) shall not:

(i) 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, confirmed in writing; or

(ii) negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).

(e) 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.

Background

The Louisiana Supreme Court adopted this rule on January 20, 2004. It became effective on March 1, 2004, and has not been amended since. This rule is identical to ABA Model Rule of Professional Conduct 1.11 (2002).

Caption

In 2002, the ABA changed the caption to the corresponding Model Rule to clarify that the Rule applies not only to a lawyer moving from government service to private practice (and vice versa), but also to a lawyer moving from one government agency to another.

Paragraph (a)

In 2002, the ABA amended Model Rule 1.11 to clarify that a lawyer who formerly served as a public officer or government employee is subject only to Rule 1.11 and not to Rule 1.9. Prior to this revision, there had been disagreement as to whether an individual lawyer who has served as a government official or employee was subject to Rule 1.9 regarding obligations to former clients or whether their obligations under Rule 1.11(a) are exclusive. The ABA decided that representation adverse to a former government client is better determined under Rule 1.11(a), which also addresses representation in connection with any other matter in which the lawyer previously participated personally and substantially as a public officer or employee. In order not to inhibit transfer of employment to and from the government, the ABA believed that disqualification resulting from representation adverse to the former government client should be limited to particular matters in which the lawyer participated personally and substantially, which is also the standard for determining disqualification resulting from prior participation as a public officer or employee. The ABA addressed the meaning of the term “matter” in new Comment 10. See ABA Ethics 2000 Commission Revision Notes to Model Rule 1.11 (2002).

In paragraph (a)(1), the ABA further clarified that a former government lawyer is subject to Rule 1.9(c) regarding the confidentiality of information relating to the former representation of a government client. See id.

Paragraph (b): Imputation of Conflicts

In paragraph (b), the ABA clarified that conflicts arising under paragraph (a)–including former client conflicts–are not imputed to a different associated lawyer when the disqualified lawyer is properly screened. In so doing, the ABA intended no change in the basic rule of imputation for situations governed under former Rule 1.11(a). Rather, the ABA intended the change for situations that previously might have been governed by Rule 1.9 rather than 1.11(a). Although former client conflicts under Rule 1.9 are imputed to an associated lawyer under Rule 1.10, this paragraph states clearly that when the conflict arises from the individually disqualified lawyer’s service as a public officer or employee of the government, the conflict is governed by paragraphs (a) and (b) of this Rule, and is not imputed if the lawyer is screened and the appropriate government agency is notified of the representation. The ABA believed that this result is necessary in order to continue to encourage lawyers to work in the public sector without fear that their service will unduly burden their future careers in the private sector. See id.

In addition, the ABA in 2002 added a scienter prerequisite to paragraph (b). This revision was intended to conform this Rule to Rule 1.10, in which an associated lawyer is not subject to discipline unless the lawyer “knows” of the disqualification of the lawyer’s colleague. See id.

Paragraph (d): Relationship to Rules 1.9 and 1.10

The ABA intended paragraph (d) to clarify that an individual lawyer may not undertake representation adverse to former clients when to do so would violate Rule 1.9, even when the representation was not in the same matter but rather was in a substantially related matter in which it is likely that the lawyer received confidential client information. See ABA Ethics 2000 Commission Revision Notes to Model Rule 1.11. However, under the Model Rules, such conflicts are not imputed to a lawyer associated in a government agency, even when formal screening mechanisms are not instituted. The lack of imputation applied to disqualifications under former Model Rule 1.11(c), but not necessarily to disqualifications of a current government lawyer under Rule 1.9, in which Rule 1.10 otherwise would apply. Screening is not required for public agencies because it may not be practical in some situations. Nevertheless, Comment 2 states the expectation that such a lawyer will in fact be screened where it is practical to do so.

Paragraph (d)(1): Relationship to Rule 1.7

The ABA decided to address in Rule 1.11 not only the imputation of former-client conflicts, but also the imputation of current conflicts of interest under Rule 1.7. As with former-client conflicts, the ABA decided that these conflicts should not be imputed to a lawyer associated in a government agency, even when formal screening mechanisms are not instituted. Screening is not required in the disciplinary context because it may not be practical in some situations. Nevertheless, as with Rule 1.9 conflicts, Comment 2 states the expectation that such a lawyer should in fact be screened where it is practicable to do so. See id.

Comments to ABA Model Rule 1.11

Generally

[1] 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 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 Rule 1.0(e) for the definition of informed consent.

[2] Paragraphs (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 1.10 is not applicable to the conflicts of interest addressed by this Rule. Rather, paragraph (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, paragraph (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.

[3] Paragraphs (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 paragraph (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 paragraph (d). As with paragraphs (a)(1) and (d)(1), Rule 1.10 is not applicable to the conflicts of interest addressed by these paragraphs.

[4] 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 paragraph (b) are necessary to prevent the disqualification rule from imposing too severe a deterrent against entering public service. The limitation of disqualification in paragraphs (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.

[5] When a lawyer has been employed by one 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 paragraph (d), the latter agency is not required to screen the lawyer as paragraph (b) requires a law firm to do. The question of whether two 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 1.13 Comment [9].

[6] Paragraphs (b) and (c) contemplate a screening arrangement. See Rule 1.0(k) (requirements for screening procedures). These paragraphs 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 lawyer’s compensation to the fee in the matter in which the lawyer is disqualified.

[7] 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.

[8] Paragraph (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.

[9] Paragraphs (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 1.7 and is not otherwise prohibited by law.

[10] For purposes of paragraph (e) of this Rule, a “matter” may continue in another form. In determining whether two 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.

Annotations

Generally

Louisiana Rule 1.11(a) prohibits a former government lawyer from handling the same matter in private practice that the lawyer handled while in government service–absent prior consent of the agency. See State v. Craddock, 62 So. 3d at 797 (La. Ct. App. 1st Cir. 2011); Walker v. La. Dep’t of Transp. & Dev., 817 So. 2d 57 (La. 2002); see also Louisiana v. Sparkman, 443 So. 2d 700 (La. Ct. App. 4th Cir. 1983) (holding that a former district attorney who participated in a matter and latter served as defense counsel in the same should have been disqualified from representing accused). This conflict–sometimes known as a “revolving-door”conflict–is also imputed to the lawyer’s new firm. Unlike the imputation provided for in Rule 1.10, which cannot be cured by screening, Rule 1.11 permits a different lawyer in the disqualified lawyer’s new firm to handle such a matter with appropriate screening and agency notification.

Louisiana Rule 1.11(b) prohibits a former government lawyer from being adverse to a person about whom the lawyer acquired confidential, potentially damaging information. Although this conflict is imputed to the lawyer’s new firm, it too can be cured through nonconsensual screening.

Relationship to Rules 1.9 and 1.10

Louisiana Rule 1.11, like Rules 1.9 and 1.10, addresses conflicts of interest (and imputation of such conflicts) that arise when a lawyer handles a matter adverse to a former client. However, when the former client is a government agency, the scope of conduct that constitutes a “conflict of interest” is significantly narrower. See, e.g., Babineaux v. Foster, No. Civ. A 04-1679, 2005 WL 711604, at *3 (E.D. La. Mar. 21, 2005) (holding that subsections (a) and (b) of Rule 1.9 do not apply to a former government lawyer). Indeed, Rule 1.11 gives a former government lawyer and the lawyer’s new firm more latitude to be adverse to a former agency than Rules 1.9 and 1.10 give a private lawyer and the lawyer’s new firm to be adverse to former clients. However, such latitude has its boundaries. Compare State v. Clausen, 104 So. 3d 410, 412 (La. 2012) (holding client’s current law firm be disqualified due to the firm’s hiring of and failure to timely screen an assistant district attorney who participated in interviews of client while at the district attorney’s office) with State v. Craddock, 62 So. 3d 791, 798 (La. Ct. App. 1st Cir. 2011) (finding no disqualification for defense lawyer representing client when lawyer worked at district attorney’s office at time of client’s arrest but had no involvement or knowledge of client’s case).

First, a lawyer is disqualified only if the lawyer participated “personally and substantially” in the relevant matter. La. Rules of Prof’l Conduct R. 1.11(a) (2004); see also Clausen, 104 So. 3d 410, 412; Restatement (Third) of the Law Governing Lawyers § 133(1) (2000). Performing merely perfunctory or insubstantial administrative tasks will not result in disqualification. See e.g., Craddock, 62 So. 3d at 798; See generally ABA Comm. on Ethics and Professional Responsibility, Formal Op. 342 (1975) (“Substantial responsibility envisages a much closer and more direct relationship than that of a mere perfunctory approval or disapproval of the matter in question.”). See also Banineaux, 2005 WL 711604, at *5 (“Personal and substantial involvement can be created through decision, disapproval, recommendation, the rendering of advice, investigation, or otherwise.”) (quoting United States v. Clark, 333 F. Supp. 2d 789, 794 (E.D. Wis. 2004)).

Second, although the partners of a private lawyer are forbidden from being adverse to their partner’s former client in the same or a substantially-related matter, the partners of a former government lawyer may undertake matters adverse to the government agency with appropriate screening. See generally ABA Comm. on Ethics and Professional Responsibility, Formal Op. 97-409 (1997). This rule is designed to ensure that a former government lawyer does not abuse the information gleaned through public service, and, on an institutional level, to ensure that governmental agencies maintain the ability to attract competent lawyers.

Screening a Disqualified Lawyer

To adequately screen a disqualified former government lawyer from a matter being handled by the lawyer’s new partner, the lawyer should refrain from discussing the matter and from sharing fees relating to the matter. In addition, the new firm should ensure that all files and documents related to the matter are segregated from other firm files and that the disqualified lawyer has no access to them. Finally, the firm should notify all lawyers and support staff, preferably in writing, of the existence of the screen. See La. Rules of Prof’l Conduct R. 1.0(k) (2004) (defining “screened”).

Other Laws Governing Former Government Lawyers

In addition to the provisions of this rule, other laws affect a former government lawyer’s ability to be adverse to the lawyer’s former agency. See Ethics in Government Act of 1978, 18 U.S.C. § 207(b) (prohibiting former federal officials prohibited from representing parties in dealings with former agency for a period of one year); Louisiana Code of Governmental Ethics, La. Rev. Stat. Ann. § 42:1121(C) (prohibiting certain state officials from representing parties in dealings with former agency for a period of two years). The Louisiana Supreme Court has held that section 42:1121(C) of the Code of Governmental Ethics does not violate the Louisiana Constitution. See Midboe v. Commission on Ethics for Public Employees, 646 So. 2d 351, 359-60 (La. 1994), ovrl’d on other grounds, Transit Management of Southeast Louisiana, Inc. v. Commission on Ethics for Public Employees, 703 So.2d 576 , 96-1982 (La. 1997).

Private Lawyers Moving Into Public Service

A lawyer who has passed through the revolving door into government service likewise must not handle matters that the lawyer participated in “personally and substantially” while in private practice. La. Rules of Prof’l Conduct R. 1.11(d)(2) (2004); see In re Smith, 29 So. 3d 1232,1236 (La. 2010) (suspending lawyer for violating Rule 1.11(d) among others through the lawyer’s continued representation of criminal defendant once hired and while serving as assistant district attorney in same parish). These conflicts–unlike those arising in the context of a former government lawyer in private practice–are not imputed to different lawyers in the agency. Id. However, the agency should still screen the lawyer from any involvement in the matter. See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 342 (1975).

Disciplinary Sanctions

For the disciplinary sanctions that are appropriate for a lawyer’s failure to avoid conflicts of interest, see supra Annotations to Louisiana Rule 1.7.

Notes

This page was updated on July 30, 2013.