Government Lawyers, Confidentiality, Conflicts, and ABA Model Rule 1.11(c)

Conflicts of interest for all lawyers are best understood by considering the overarching principles that the conflicts rules are designed to protect. Lawyers owe their clients duties of confidentiality and loyalty. When those duties are compromised, the lawyer most likely has a conflict of interest, which can sometimes be waived. The conflicts rules are designed to steer the lawyer clear of situations that jeopardize the sanctity of the lawyer-client relationship. Because of the unique role and extensive power and reach of the government, which grants government lawyers access to information about not only their government-client but also individuals outside of government, ABA Model Rule of Professional Conduct (hereinafter “Model Rule” or “Rule”) 1.11 protects information related to the lawyer-client relationship and also confidential information of third parties. The recent ABA Formal Ethics Opinion 509, Disqualification to Prevent the Misuse of Confidential Government Information, addresses this important issue and will be discussed further below.

Who Is the Client?

The first step in the assessment of all lawyer-client matters is ascertaining the client’s identity. As any lawyer who has ever been employed in a government position knows, determining the identity of the government client can be a reasonably complicated endeavor. The government lawyer’s client may be a specific agency, a branch of the government, or sometimes even the government as a whole. Thus, recognizing the client’s identity and to whom the duty of confidentiality is owed is more complicated for lawyers employed by the government than it is for lawyers in private practice who represent non-organizational clients.

Confidentiality Obligations

Lawyers employed by the government owe obligations of confidentiality to their clients under the same Rules that govern the conduct of private practitioners: Model Rules 1.6, 1.8(b), 1.9 (c), 1.11, 1.13(c)(2), and 1.18. Model Rule 1.11 applies to lawyers currently or formerly serving as government officers or employees. Under that Rule, the duty of confidentiality is owed regardless of the lawyer’s representational capacity at the time of the government employment. As is the case for all lawyers, confidential information of a client cannot be disclosed unless revelation is impliedly authorized or permitted by an exception. In the case of a former client, the duty is somewhat tempered, allowing lawyers to reveal information that has become generally known. In the right circumstances, government lawyers may actually reveal limited information related to the representation whether or not permitted to do so by Model Rule 1.6—in particular when the lawyer reasonably believes an officer, employee, or other person associated with the government agency may act in a manner in violation of a legal obligation owed to the organization that is reasonably certain to result in substantial injury to the organization. Model Rule 1.11 constrains how current and former government lawyers can use confidential information, subjecting both to the restrictions of Rule 1.9(c).

Conflicts

Government lawyers, both current and former, are governed specifically by Rule 1.11, which applies a different standard from the other conflict rules, disqualifying government lawyers who participated “personally or substantially” in a matter. The Rule represents a balancing of interests, allowing lawyers to move from government employment to private practice and allowing the government to attract qualified lawyers without restrictions that unduly prohibit those movements while avoiding unfair advantage or misuse of government power. While the personal and substantial participation standard of Model Rule 1.11 is different than the standards set out under Model Rules 1.7 (current client) and 1.9 (former client), former government lawyers (1.11(a)) are bound by 1.9(c) in evaluating conflict scenarios, and current government lawyers (1.11(d)) are subject both to 1.7 and the entirety of 1.9.

A Brief History of Model Rule 1.11

Model Rule 1.11 was initially proposed in 1983 by the Kutak Commission and aimed at establishing guidelines for addressing conflicts of interest relating to the “revolving door” (i.e., lawyers moving from government service to private practice). Originally, Rule 1.11 was titled “Successive Government and Private Employment.” Eventually, the Ethics 2000 Commission “recommended expanding the Rule’s scope to address conflicts for lawyers currently and formerly serving the government as well as those ‘moving from one government agency to another.’” “In its report to the ABA House of Delegates the Ethics 2000 Commission explained, ‘an expanded Rule 1.11 . . . combines for the first time in a single rule a lawyer’s duties when opposing a former client, and the special obligations of a government employee not to abuse the power of public office.’” At that time, the Rule was retitled to “Special Conflicts of Interest for Former and Current Government Officers and Employees,” and the text was also amended. The Rule applies both to current and former lawyers serving as government officers and employees as well as to lawyers employed by the government in a full or part-time capacity. Effectively, if a lawyer exercises government authority to obtain information, the information gathered by the lawyer may come under the reach of the Rule.

Confidentiality Protections of Model Rule 1.11(c)

When compared with other obligations imposed by the Model Rules, Model Rule 1.11 is unique in several respects, including the protections it affords to confidential information of third parties. The provision reads as follows:

(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.

“The objective of the Rule is to ‘prevent the lawyer’s improper use of his or her official position’ and to protect others from the exploitation of confidential government information, acquired by the lawyer while serving as a public officer or employee.”

Distinct from other conflict rules, Rule 1.11(c) provides for disqualification in some circumstances to protect against the misuse of certain government information adversely to any “person” (i.e., an individual or an entity) to whom the information relates (which may or may not be the person from whom the government obtained the information), rather than adversely only to a former client. “Rule 1.11(c) also may extend to information not protected under 1.6 if the information was acquired by a lawyer while serving as a public officer or employee, but not as a lawyer representing the government, meaning the lawyer learned the information in a nonrepresentational capacity.” Model Rule 1.11(c) does provide for screening to avoid disqualification as follows: “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.”

Unique to the government lawyers, Rule 1.11(c) refers to confidential government information about a person “acquired when the lawyer was a public officer or employee,” indicating, as noted above, that the Rule applies irrespective of whether lawyers served in a representational capacity when they acquired the confidential government information. This protection furthers the Rule’s objective because the lawyer’s role or status in the government when the lawyer obtained the information does not change the importance of protecting the information acquired under government authority from misuse. Therefore, as an example, a lawyer who is also a police officer is a public officer for purposes of Rule 1.11(c). That lawyer is subject to Rule 1.11(c) when that lawyer possesses information acquired when serving as a police officer that the lawyer knows is confidential government information that could be used to the material disadvantage of a person whose interests are adverse to the lawyer’s private client in a matter. The Rule’s protections are broad, applying to lawyers who acquire confidential government information while serving as legislators, public executives, and other public officers who are not representing the government as legal counsel.

Although lawyers do not need to be serving in a representational capacity, Rule 1.11(c) does not protect all government information but only “information that has been obtained under governmental authority and which . . . 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.” Comment [4] to Rule 1.11 explains that government lawyers are prohibited from disclosing or using “confidential government information about a person,” as defined in the Rule, because the government itself has an obligation to protect such information. “Information meets the ‘governmental authority’ test if it was acquired through a search warrant, a civil investigative demand (‘CID’), a wiretap, a government informant, a government investigator showing a badge, any request on government letterhead, or even an oral request from a government official with power to act on the information (or to punish the refusal to supply the information).”

Rule 1.11(c) does not apply to all information but only to information that, at the time the Rule is applied, the government is legally prohibited from disclosing to the public or has a legal privilege not to disclose if the information is not otherwise publicly available. The concept of “confidential government information” is borrowed from federal statutes, which have extensive protections for nonpublic information. For example:

[t]his conceptualization of “confidential government information” is analogous to the definition of “nonpublic information” in 5 C.F.R. § 2635.703(b) (“Use of nonpublic information”). This regulation stipulates that a federal government employee “shall not engage in a financial transaction using nonpublic information or allow the improper use of nonpublic information to further his own private interest or that of another[.]” Section 2635.703(b) defines “nonpublic information” as information that an employee obtains due to Federal employment and that he knows or reasonably should know: “(1) Is routinely exempt from disclosure under 5 U.S.C. 552 [Freedom of Information Act] or is protected from disclosure by statute, Executive order or regulation; (2) Is designated as confidential by an agency; or (3) has not actually been disseminated to the general public and is not authorized to be made available to the public on request.”

The concept of “not otherwise available to the public” is broadly defined as meaning “if the public cannot obtain this information then it meets this element.” Because 1.11(c) borrows its definition of confidential government information from a federal regulation regarding use of nonpublic information that incorporates the Freedom of Information Act (FOIA), it is important to understand that FOIA has nine exemptions and three exclusions. Further, to understand its application, lawyers also have to consider the Financial Crimes Enforcement Network (FinCEN) regulations, which interpret its implementation. FOIA is not intended to ensure that private citizens have access to all information in the government’s possession, only that the government’s activities are open to some scrutiny. Thus, for example, “if the information is available on the internet, or in public archives or upon request at a government agency [only then] does it not satisfy this element” and not qualify as confidential government information. The Rule does not require that the confidential government information has been or will be used by the lawyer, only that it could be used to the material disadvantage of a person.

Consider as an example, the FOIA exemption for “Trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential,” which prevents disclosure of that information through a FOIA request. In discussing the meaning of the word “confidential” in its majority opinion in Food Marketing Institute v. Argus Leader Media, the court relied on the word’s ordinary meaning, “private” or “secret,” and further considered two steps: first, that the party producing the information ordinarily considers it private, and second, that the party receiving the information imparts some assurance that it will remain secret.

The fact that confidential government information learned by a lawyer employed by the government and obtained under government authority may later be requested in discovery does not transform the character of the information to nonconfidential status. Courts have disqualified lawyers where information they obtained while employed by the government could also have been sought in discovery, including through document discovery and depositions. Where a former prosecutor had knowledge of the structure of a business or the role of other individuals, also information that could potentially be obtained in discovery, he was disqualified from representing one of the defendants in spite of the passage of more than 20 years. Because the lawyer, as a former assistant attorney general, gained “strategic insights” from “interviewing [the] facility’s former employees,” his knowledge of these matters was considered confidential government information, disqualifying the lawyer from representing the defendant even though that lawyer could have conducted those same interviews in depositions and obtained the same information.

Other examples of information that might eventually be discoverable but are still considered confidential government information include information a lawyer, also a police officer, acquired that was nonpublic employment reviews of nonpublic discipline of police officers, information a government lawyer acquired as a town supervisor, information that a government lawyer acquired from “a state-run database containing information to assist in nonsupport prosecutions, including (potentially) an individual’s current financial information, location, prior employment and past earnings,” and “tax information.”

Because the purpose of Rule 1.11(c) is to protect those who comply with government demands for information from government overreach, there would be no protection from government overreach if government lawyers could simply avoid Rule 1.11(c) by requesting the information through discovery in a later case. The issue is whether the government lawyer used government authority to obtain confidential government information at the time the information was obtained—that is what protects the information as confidential government information, not that the information may somehow be produced in discovery. Further, conflicts under Rule 1.11(c) are not consentable. Rule 1.11(c) does not allow the government, the client, or the person against whom the information might be used to waive the confidentiality protections. In the context of determining what is confidential government information, courts must take care to honor the purposes behind the rule—avoiding government overreach and protecting confidential information of third parties produced in government investigations.

A Private Client

Model Rule 1.11(c) applies to “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” when that lawyer represents a “private client.” Rule 1.11(c) applies to private persons and entities whom a lawyer represents in private practice, whether that practice follows government service or is concurrent with it. ABA Formal Opinion 509 noted the consistency of these policy concerns over 40 years, citing ABA Formal Opinion 342 (1975), in which the Committee determined that the term “private employment” in the text of ABA Model Code of Professional Responsibility Disciplinary Rule 9-101(B), the predecessor to Model Rule 1.11(a)’s disqualification provision, “refers to employment as a private practitioner.” “If one underlying consideration is to avoid the situation where government lawyers may be tempted to handle assignments so as to encourage their own future employment in regard to those matters, the danger is that a lawyer may attempt to derive undue financial benefit from fees in connection with subsequent employment, and not that he may change from one salaried government position to another.”

Importantly, the term “private client” also includes public entities and officials whom the lawyer represents in private practice if those clients are not legally entitled to employ the confidential information. Again citing back to years of consistent policy concerns, ABA Formal Opinion 509 notes that the Rule is plainly intended, in part, to prevent a lawyer from using confidential government information on behalf of a public entity whom the lawyer represents in private practice where the lawyer obtained confidential government information under the auspices of government authority.

Conclusion

Rule 1.11(c) provides important protections against the misuse of confidential government information, a term that is broadly construed, when lawyers, regardless of their representational capacity, obtain confidential government information using government authority. The Rule applies to lawyers currently and formerly employed by the government, whether full- or part-time, where government authority was exercised to obtain information. The Rule applies when lawyers in private practice represent private clients, a term that includes both private clients and public entities. Lawyers engaged in government practice should familiarize themselves with ABA Formal Opinion 509 and the government regulations and statutes that are the basis for the definition of confidentiality in Rule 1.11(c).