Attorney Adams was a government lawyer who substantially participated in drafting a new federal regulation concerning cybersecurity for financial institutions. After leaving government service, Attorney Adams joins a private law firm. A client of the firm, 'SecureBank,' seeks to challenge the validity of this new regulation in federal court. SecureBank asks Attorney Adams to represent them in this challenge. Is Attorney Adams permitted to represent SecureBank?
- ANo, because any work on a regulation as a government lawyer creates a permanent, unconsentable conflict for that lawyer regarding that regulation.
- BYes, because challenging the validity of a regulation is a different 'matter' than drafting it, and no confidential government information is involved.
- CNo, because a lawyer who has participated personally and substantially as a public officer or employee in a matter shall not thereafter represent a private client in connection with the same matter.
- DYes, provided the government agency gives informed consent, confirmed in writing.
Show answer & explanationAnswer & explanation
Correct answer: C. No, because a lawyer who has participated personally and substantially as a public officer or employee in a matter shall not thereafter represent a private client in connection with the same matter.
Under Model Rule 1.11(a), a lawyer who has formerly served as a public officer or employee of the government is prohibited from representing a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee. Drafting a specific regulation is considered a 'matter' for these purposes, and challenging its validity later is in connection with the same matter.
Why the other options are wrong
- A. The conflict is limited to the 'same matter' and can, in some specific circumstances, be waived by government consent, but it's not a blanket unconsentable conflict for all future work related to the regulation.
- B. Drafting and challenging the same regulation are considered the 'same matter' for former government lawyer conflict rules.
- D. Consent from the government agency is generally not sufficient to cure this specific type of conflict under Rule 1.11(a).
Former Government Lawyer Conflict (Same Matter)
A lawyer who has formerly served as a public officer or employee of the government shall not represent a private 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.
- Applies to the 'same matter' in which the lawyer had substantial government involvement.
- Prohibits representation of a private client adverse to the government's interest.
- Consent from the government agency can sometimes waive the conflict, but is often difficult to obtain.
Memory trick: Don't fight the rules you helped write.