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

When it applies

This comes up whenever a lawyer moves from a government agency to a private firm (the "revolving door" problem) or vice versa, and is heavily tested on the MPRE because the screening exception here differs from Rule 1.10's general imputation approach. Expect fact patterns involving former prosecutors, agency lawyers, or government attorneys now in private practice facing a former client/matter overlap.

What the rule requires

• A former government lawyer may not represent a private client in a matter in which the lawyer personally and substantially participated while in government service, unless the government agency gives informed consent, confirmed in writing.
• If personally disqualified, the former government lawyer's firm can avoid imputation by timely screening the lawyer from any fee and from the matter, and by giving prompt written notice to the appropriate government agency.
• A lawyer who acquired confidential government information about a person while a public officer or employee may not later represent a private client whose interests are adverse to that person in a matter where the information could be used to that person's material disadvantage; screening can also cure this imputation issue.
• A current government lawyer is subject to Rules 1.7 and 1.9 for conflicts with other matters, and generally may not negotiate for private employment with a party or lawyer involved in a matter in which the government lawyer is participating personally and substantially, absent limited exceptions.
• Former judges, arbitrators, mediators, other adjudicative officers, and their law clerks are governed by Rule 1.12, not Rule 1.11. Under Rule 1.12, such a lawyer who later moves to private practice is barred from matters they were personally and substantially involved in, unless all parties give informed consent, confirmed in writing.
• "Matter" is defined specifically under this rule and generally means a discrete transaction or proceeding, not just a general subject area.

Exceptions

• Government agency can waive the former lawyer's disqualification through informed consent, confirmed in writing.
• Timely screening plus written notice to the agency avoids imputing the conflict to the entire firm. The conditions differ from Rule 1.10's lateral-hire screening: notice goes to the agency rather than to a former client, and no certifications are required.
• For confidential government information conflicts, screening the personally disqualified lawyer also avoids imputation to the firm.
• Under Rule 1.12 (not Rule 1.11), a former adjudicative officer's conflict can be waived if all parties to the proceeding give informed consent, confirmed in writing.
• General knowledge of agency policies or practices does not count as confidential government information triggering disqualification.

How the MPRE tests Model Rule 1.11

• Students often assume the firm cannot avoid disqualification without the affected party's consent. Rule 1.11 permits screening plus notice to the agency without consent from anyone. Rule 1.10 also permits screening for lateral private-practice hires, but under different conditions (notice to the former client and certifications), and Rule 1.10 itself points to Rule 1.11 for former government lawyers.
• Confusing whose consent is needed: for the personal-participation conflict, it's the government agency's consent that matters, not a private party's.
• Missing the distinction between 'personally and substantially participated' (a high, specific involvement standard) versus mere awareness or tangential involvement in a matter.
• Forgetting that 'matter' has a narrower definition here, so working on the same general subject in a different transaction may not trigger disqualification.