Attorney U, a government lawyer, was actively involved in drafting new federal regulations concerning environmental emissions for a specific industry. After the regulations were finalized and published, Attorney U leaves government service and joins a private law firm. A year later, a company in the industry affected by these new regulations approaches Attorney U's firm for representation to challenge the validity of these very regulations in court. What is Attorney U's ethical obligation?
- AAttorney U may represent the company if the firm screens her and she receives no part of the fee.
- BAttorney U can represent the company as drafting regulations is not considered a 'matter' for conflict purposes.
- CAttorney U must decline representation because she participated personally and substantially in the 'matter' of drafting the regulations.
- DAttorney U may represent the company if the government agency gives informed consent, confirmed in writing.
Show answer & explanationAnswer & explanation
Correct answer: C. Attorney U must decline representation because she participated personally and substantially in the 'matter' of drafting the regulations.
Rule 1.11(a)(1) prohibits a lawyer who has formerly served as a public officer or employee from representing a client in connection with a matter in which the lawyer participated personally and substantially. While 'matter' is usually defined as a specific transaction or proceeding, the drafting of regulations can be considered a 'matter' for conflict purposes if the subsequent challenge directly involves the substance of those regulations and the lawyer's prior involvement was personal and substantial. Here, challenging the validity of the *same* regulations Attorney U drafted is precisely the type of conflict Rule 1.11 is designed to prevent, as it involves taking a position adverse to the government on work the lawyer personally and substantially performed. Consent from the government agency would be required to proceed.
Why the other options are wrong
- A. Screening and no fee apportionment are conditions for *imputed* disqualification under Rule 1.11(b), but Attorney U's *personal* disqualification under Rule 1.11(a) remains.
- B. This is incorrect. While general policy-making is not a 'matter,' the specific drafting of regulations that are then challenged is typically considered a 'matter' under Rule 1.11.
- D. While consent *could* waive the conflict, the question asks for the ethical obligation *without* consent. The primary obligation is to decline due to the conflict.
Former Government Lawyer (Drafting Regulations)
A former government lawyer is prohibited from representing a client in a matter in which the lawyer participated personally and substantially while in government service, including the drafting of specific regulations that are later challenged, unless the government agency gives informed consent.
- Applies to 'matter' where lawyer participated 'personally and substantially'.
- Drafting specific regulations can be a 'matter'.
- Prohibits taking adverse positions to government on prior work.
- Waiver requires informed consent from the government agency.
Memory trick: Government's Guidance Guides Goals, Governing Guardians Get Grounded.