Government service and neutrals - Lawyers currently or forme...

Learning Outcomes

After studying this article, you will be able to identify and apply the rules governing lawyers who currently serve or have formerly served in government positions. You will understand the restrictions on representing private clients in matters involving prior government work, the requirements for screening, and the handling of confidential government information. You will also know the rules for lawyers acting as neutrals, such as arbitrators or mediators, and the consequences for their firms.

MPRE Syllabus

For the MPRE, you are required to understand the ethical obligations of lawyers who are or were government employees, as well as those who act as third-party neutrals. This article addresses:

• Identifying conflicts of interest for current and former government lawyers.
• Restrictions on representing private clients in matters involving prior government participation.
• The use and protection of confidential government information.
• Screening requirements for law firms employing former government lawyers.
• Rules for lawyers serving as arbitrators, mediators, or other neutrals.
• Imputation of disqualification to law firms and exceptions.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. A former government lawyer wants to represent a private client in a matter she worked on personally and substantially while in government service. What must occur before she may do so?
   1. She may proceed if she does not use confidential information.
   2. She may proceed if her firm screens her from the matter.
   3. She may proceed only with the government agency’s informed, written consent.
   4. She may proceed if the client consents.
2. Which of the following best describes "confidential government information" for purposes of conflicts rules?
   1. Any information the lawyer learned while in government.
   2. Information the government is prohibited by law from disclosing and is not generally available to the public.
   3. All information about government investigations.
   4. Only information marked "confidential."
3. A lawyer served as a mediator in a dispute. After the mediation, her law partner is asked to represent one party in a related matter. What is required for the partner to proceed?
   1. Only the partner’s consent is needed.
   2. All parties to the prior mediation must give informed, written consent.
   3. The lawyer who served as mediator must be screened.
   4. The court must approve the representation.
4. If a former government lawyer is disqualified from a matter, what must the law firm do to avoid imputed disqualification?
   1. Nothing; only the lawyer is disqualified.
   2. Screen the lawyer and give written notice to the government agency.
   3. Obtain the client’s consent.
   4. Disclose the matter to the court.

Introduction

Lawyers who serve or have served in government face unique ethical restrictions when moving to or from private practice. The Model Rules impose strict limits to prevent conflicts of interest, misuse of confidential government information, and improper influence. These rules also apply to lawyers who act as third-party neutrals, such as arbitrators or mediators. Understanding these rules is essential for MPRE success.

Key Term: Government Lawyer
A lawyer employed by a government agency or entity, including prosecutors, agency counsel, and other public sector attorneys.

Conflicts for Former Government Lawyers

A lawyer who previously worked for the government may not represent a private client in a matter in which the lawyer participated personally and substantially as a government employee, unless the relevant government agency gives informed consent in writing.

Key Term: Personally and Substantially
Direct involvement to a significant degree in a specific matter, such as investigating, negotiating, or advising, not just general supervision.

If a former government lawyer is disqualified, no lawyer in the firm may participate in the matter unless:

• The disqualified lawyer is timely screened from any participation and receives no part of the fee.
• Written notice is promptly given to the appropriate government agency.

Key Term: Screening
Procedures that isolate a disqualified lawyer from any participation in a matter, including access to files, discussions, and fees, to protect confidential information.

Use of Confidential Government Information

A former government lawyer may not use confidential government information about a person acquired during government service to the material disadvantage of that person in a matter where the information could be used. This restriction also applies to the lawyer’s new firm unless the lawyer is screened and receives no part of the fee.

Key Term: Confidential Government Information
Information obtained under government authority that the government is legally prohibited from disclosing or has a legal privilege not to disclose, and is not generally available to the public.

Conflicts for Current Government Lawyers

A lawyer currently serving as a government employee must not participate in a matter in which the lawyer participated personally and substantially while in private practice or non-governmental employment, unless the government agency gives informed, written consent.

Current government lawyers are also subject to the general conflict rules for current and former clients.

Negotiating for Private Employment

A government lawyer may not negotiate for private employment with any party or lawyer involved in a matter in which the lawyer is participating personally and substantially, except for law clerks who notify the judge.

Imputation of Disqualification to Law Firms

When a former government lawyer joins a private firm, the firm is disqualified from matters in which the lawyer is personally disqualified, unless the lawyer is properly screened and written notice is given to the government agency.

Lawyers as Neutrals: Arbitrators, Mediators, and Third-Party Neutrals

A lawyer who has served as an arbitrator, mediator, or other neutral may not later represent anyone in connection with the same matter unless all parties to the proceeding give informed, written consent.

If a lawyer is disqualified for prior neutral service, no lawyer in the firm may participate in the matter unless:

• The disqualified lawyer is screened from the matter and receives no part of the fee.
• Written notice is given to the parties and the tribunal.

Key Term: Third-Party Neutral
A lawyer who assists two or more persons to resolve a dispute without representing any party, such as an arbitrator or mediator.

Worked Example 1.1

A former city attorney, while in government service, drafted a contract for a city project. After leaving government, she is asked to represent a private contractor in a dispute over that same contract. The city has not given written consent. May she represent the contractor?

Answer:
No. The lawyer participated personally and substantially in the contract matter while in government. She is prohibited from representing a private client in the same matter unless the city agency gives informed, written consent.

Worked Example 1.2

A lawyer served as a mediator in a business dispute. After the mediation, one party asks a partner at the mediator’s firm to represent them in a related lawsuit. The mediator is screened from the case, and all parties to the mediation give informed, written consent. Is the representation proper?

Answer:
Yes. With informed, written consent from all parties and proper screening, the partner may represent the client in the related matter.

Worked Example 1.3

A former federal prosecutor joins a law firm. The firm is asked to defend a client in a case the prosecutor worked on personally and substantially. What must the firm do to avoid imputed disqualification?

Answer:
The firm must screen the former prosecutor from any participation, ensure she receives no part of the fee, and promptly notify the government agency so it can monitor compliance.

Exam Warning

Many students confuse "personally and substantially" with any involvement. Mere supervisory responsibility does not trigger the prohibition—direct, significant participation is required.

Revision Tip

Always check if the matter is the same or "substantially related" and whether the lawyer’s involvement was personal and substantial. Screening and written notice are essential for law firms.

Key Point Checklist

This article has covered the following key knowledge points:

• Former government lawyers may not represent private clients in matters they participated in personally and substantially, unless the agency consents in writing.
• Law firms can avoid imputed disqualification by screening the former government lawyer and giving written notice to the agency.
• Confidential government information cannot be used to the material disadvantage of a person if acquired during government service.
• Current government lawyers may not participate in matters they worked on personally and substantially in private practice, unless the agency consents.
• Lawyers who served as arbitrators, mediators, or other neutrals cannot represent parties in the same matter without informed, written consent from all parties.
• Screening and written notice are required for law firms when a lawyer is disqualified due to prior government service or neutral role.

Key Terms and Concepts

• Government Lawyer
• Personally and Substantially
• Screening
• Confidential Government Information
• Third-Party Neutral