Reporter's Explanation of Changes
TEXT:
1. Change caption to read "Special Conflicts of Interest for Former and Current Government Officers and Employees"
The change in caption reflects the fact that the Rule has traditionally been applied not only to lawyers moving from government service to private practice (and vice versa) but also to lawyers moving from one government agency to another.
2. Paragraph (a): Clarify that individual lawyer who formerly served as public officer or government employee is subject only to this Rule and not to Rule 1.9
There has been disagreement whether individual lawyers who have served as government officials or employees are subject to Rule 1.9 regarding their obligations to former clients or whether their obligations under Rule 1.11(a) are exclusive. The question is an important one, for the individual lawyer, for the lawyer’s firm, and for the government. The Commission 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 Commission believes 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 regarding prior participation as a public officer or employee. The meaning of the term "matter" is clarified in new Comment [10].
Paragraph (a)(1) further clarifies that former government lawyers are subject to Rule 1.9(c) regarding the confidentiality of information relating to the former representation of a government client.
3. Paragraph (a): Delete "private"
The text of current Rule 1.11(a) suggests that the disqualification under that paragraph applies only when the lawyer moves from government service to private practice. Current Comment [4], however, states that "[w]hen the client is an agency of one government, that agency should be treated as a private client for purposes of this Rule." To avoid any possible confusion, the Commission determined that the text should be changed to conform to the Comment.
4. Paragraph (a)(2): Change from "consent after consultation" to "gives its informed consent to the representation"
The Commission is recommending that throughout the Rules the phrase "consent after consultation" be replaced with "gives informed consent," as defined in Rule 1.0(e). No change in substance is intended.
5. Paragraphs (a) and (d): Consent to be "confirmed in writing"
The Commission recommends requiring that the consent here be confirmed in writing, as with other conflict-of-interest Rules. "Confirmed in writing" is defined in Rule 1.0(b).
6. Paragraph (b): Clarify that conflicts under paragraph (a) – including former client conflicts – are not imputed to other associated lawyers when individual lawyer is properly screened
There is no change in the basic rule of imputation for situations governed under former Rule 1.11(a). The change is intended 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 associated lawyers 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 Commission believes 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. (Conflicts are not imputed under either the current or the proposed Rule when the move is from one government agency to another.)
7. Paragraph (b): Add scienter requirement
This change conforms this Rule to Rule 1.10, in which associated lawyers are not subject to discipline unless they "know" of the disqualification of their colleague.
8. Paragraphs (b)(1) and (c): Add "timely"
The Commission is recommending a definition of "screened" that includes a requirement that the lawyer be "timely" isolated from participation in the matter. Nevertheless, the Commission believes that the timeliness requirement is so important that it should appear in the text as well. This change is being recommended for all of the Rules that address screening. See Rules 1.12 and 1.18.
9. Paragraph (c): Include definition of "confidential government information" from current paragraph (e)
The material in what is now paragraph (c) is currently in paragraph (b). The Commission is recommending that current paragraph (e) be deleted and the definition of "confidential government information" be moved to paragraph (c), where the defined term is now used. This change is for purposes of clarification only, and no change in substance is intended.
10. Paragraph (d): Clarify relationship between this Rule and Rules 1.9 and 1.10
This paragraph is intended to clarify that individual lawyers 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. These conflicts, however, are not imputed to lawyers associated in a government agency, even when formal screening mechanisms are not instituted. The lack of imputation presently applies to disqualifications under current 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 lawyers will in fact be screened where it is practical to do so.
11. Paragraph (d)(1): Add reference to Rule 1.7
The Commission determined that it made sense 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 Commission decided that these conflicts should not be imputed to lawyers 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 lawyers will in fact be screened where it is practicable to do so.
12. Paragraph (d)(2): Substitute "informed consent" of the client for exception where "under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer's stead in the matter"
The interests of the former client are protected under Rule 1.9, and, under that Rule, the former client may effectively consent to a subsequent adverse representation. The interests of the government agency itself are protected under paragraph (d)(2). These interests are similar to those protected under paragraph (a)(3), where the former government agency may effectively consent to the subsequent representation. If a government agency can effectively consent under paragraph (a)(3), the Commission sees no reason why it cannot similarly consent to representation otherwise prohibited by paragraph (d)(2). This would include (but not be limited to) situations where "under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer's stead in the matter."
13. Delete current paragraph (e)
As set forth above, the Commission proposes to delete current paragraph (e) and move its material unchanged to paragraph (c).
COMMENT:
[1] The Commission recommends deleting current Comment [1] and expanding upon the rationale for the Rule in Comment [4].
[1] The reference to Rule 1.9 has been deleted because the relationship between Rules 1.9 and 1.11 is now addressed in Comment [2]. The remainder of the changes are stylistic, and no change in substance is intended.
[2] This entirely new Comment explains the relationship between Rules 1.9, 1.10 and 1.11 as stated in the text of paragraphs (a)(1), (a)(2) and (d)(1).
[3] This new Comment provides the rationale for the obligations of the individual lawyer under paragraphs (a)(3) and (d)(2), which are the obligations of former and present government lawyers aside from those imposed by Rule 1.9. Unlike Rule 1.9, these obligations are designed to protect against abuse of public office generally, not necessarily obligations owed to former clients of the lawyer.
[4] This Comment modifies slightly the provisions of current Comment [3]. First, it avoids using the term "private," given the applicability of the Rule to successive representation between distinct government agencies. It also makes minor stylistic changes and adds a sentence at the end to explain the rationale for limiting the disqualification in paragraphs (a)(3) and (d)(2) to a narrower range of "matter" than is typically covered by conflict-of-interest rules. (See paragraph (e).)
[5] The changes reflect the change in text to delete the reference to "private" clients. The last sentence explains how imputation works when the successive clients are both government agencies.
[6] This Comment provides a cross-reference to the screening requirements in Rule 1.0(k) and further elaborates on the prohibition on fee apportionment in language identical to that used in the Comment to the other screening Rules. See Rules 1.12 and 1.18.
[7] This entirely new Comment elaborates on the notice requirement, in language identical to that in the Comment to the other screening Rules. See Rules 1.12 and 1.18.
[6] This Comment has been deleted because its content is covered in Comment [7].
[9] The current Comment has been deleted. Its content now appears in Comment [2].
[10] This new Comment clarifies that two particular matters may constitute the same matter for purposes of paragraph (a)(2), depending on the circumstances. The language is drawn from but is not identical to the definition of "matter" as it is used in the federal conflicts of interest statute. Cf. 5 C.F.R. 2637.201(c)(4).