AS A LAWYER who recently made the transition from the public to the private sector, I would like to provide a few observations that might be helpful for any lawyer thinking about or in the process of making a similar transition. Although circumstances vary, there are certain general considerations worth reviewing.

One of the first things to think about, and I agonized for some time over the best way to do this, is how you can start to look for a position in the private sector while still employed in the public sector. In other words, what are the limits on your ability to look for work while still doing your public sector job?

The reality for most lawyers in the public sector, particularly those who specialize, is that your best job prospects are with a law firm that already does the kind of public sector work you are doing, which raises potential conflict issues that need to be addressed.

In my case, as chair of the Public Utilities Commission, a quasi-judicial body, I had some special considerations that do not apply to all public sector attorneys. Rule 1.12 (b) of the New Hampshire Rules of Professional Conduct (NHRPC), for example, says that a lawyer "shall not negotiate for employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer, or arbitrator." This rule also requires a law clerk to notify the judge or adjudicative officer for whom he or she is clerking before negotiating for employment with a party or attorney involved in a matter in which the clerk is participating personally and substantially. Such a rule was clearly going to limit my ability to discuss employment with most law firms that practice before the PUC. I considered whether I would need to leave my public sector position altogether before I could even talk with any potential new employer – an impractical and somewhat unnerving solution considering my obligations to my family – or whether I could job search while still employed by the PUC.

I also reviewed a more general rule that is of concern to all public sector lawyers. Rule 1.11(c) (2) says, "[e]xcept as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not negotiate for private employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially." I found some comfort in the annotation in the ABA Model Code Comments, which in part says, "the rules governing lawyers presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from the government." It was also instructive to review the more detailed annotations in the Annotated Model Rules of Professional Conduct, 4th ed., published by the Center for Professional Responsibility of the American Bar Association.

As the first phrase in Rule 1.11(c) (2) suggests, there may also be statutory considerations in transitioning from the public to private sector. In my case, a statute applied that instead of permitting negotiations imposed some general restrictions. RSA 363:12, which requires PUC commissioners to conduct themselves in accordance with a code of ethics, requires the avoidance of impropriety and the appearance of impropriety in all activities; the performance of duties impartially and diligently; and disqualification from proceedings in which my impartiality might reasonably be questioned. Clearly, the import of these statutory provisions, although more general in their language, was along the same lines as the provisions in the Code cited above. To me, this meant that if I were talking to a law firm that had any involvement in a proceeding before the commission in which I was personally and substantially involved, I would need to take appropriate steps to avoid a problem.

Another consideration for me, which may apply as well to other public sector lawyers, was the PUC’s internal ethics policy. This policy required me to inform a member of the internal ethics board of any employment contact with a person affiliated with an entity regulated by the PUC, and to then take appropriate steps, even to the point of disqualification if necessary, to cure any conflict.

In addition, although the Code of Ethics for executive branch employees that Gov. Jeanne Shaheen adopted by executive order in 1998 has no specific restriction related to employment negotiations, it does have a general prohibition that applies to commissioned or unclassified, as well as classified, employees. It states that any such employees must avoid conflicts of interest or the appearance of conflict of interest; must not participate in any matter in which they have a private interest that might affect the performance of their duties; and must not use their positions to secure advantages or privileges for themselves.

As I considered these restrictions and talked with some private sector lawyers who had transitioned from the public sector, I realized that the most pragmatic solution would be to withdraw from any matters involving a firm with which I had any employment discussions, at least while those discussions were proceeding. This is, in fact, what I did.

This may be a fairly simple thing to do, depending on the position you are in and the matters in which you are involved, or it may be more complicated. Who to notify of your withdrawal and how to go about it are two important factors to consider. There is also the practical consideration of the impact of your withdrawal from certain matters; i.e. can those matters still proceed? Is there someone else who can step into your shoes, at least temporarily? Clearly the timing of your seeking new employment may be affected by your involvement in certain public sector matters.

Before approaching any firm or lawyer that had matters pending before the PUC, I took one further step that made me feel more comfortable: I announced publicly that I was not seeking reappointment to my position. By doing this, I made sure that the parties and attorneys who practiced before us were generally aware that I was leaving the PUC. It created some time constraint because I hoped to have my next position lined up before I left the public sector, but it made me feel much more comfortable about the process.

Of perhaps equal importance are issues related to restrictions on what you will be able to do when you leave your public sector position. In my case, there is a statutory restriction that prevented me from accepting "employment with a utility under the control of the commission" for a one-year period. There is also a restriction outlined in the governor’s ethics policy that says that a commissioned, unclassified or non-classified executive branch employee is not to "appear as a lobbyist or as a paid advocate on behalf of any matter over which that official had personal and direct responsibility while in state government" for a one-year period after leaving office. The standard is somewhat similar to what is in the NHRCP Rule 1.11, which prevents a lawyer from representing "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 consents after consultation."

There are also some screening steps that the former public sector lawyer’s new firm must take if it is to be involved in any such matters, as well as some restrictions that pertain to confidential government information that the lawyer obtained while in the public sector. NHRCP Rule 1.12 has similar restrictions for lawyers who participated as a judge or adjudicative officer, arbitrator or law clerk.

While it is beyond the scope of this article to address limitations on federal employees, I should mention that they are subject to similar, but more detailed, restrictions on employment negotiations and post-public sector employment. See 18 USC sec. 207 and 208; 5 CFR sec. 2635.604, 2637 and 2641. There may also be more specific statutes or regulations that relate to particular agencies and positions.

These are just a few of the issues to consider if you are making the transition from the public to private sector. If you are in doubt about how to proceed, seek guidance from those who have made the transition, or those familiar with ethics issues. And perhaps most important, be sure to follow your own moral compass.

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