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Rule 1.11: Special Conflicts Of Interest

ABA RULE 1.11


Adopted, Effective Jan. 1, 2008

CLIENT-LAWYER RELATIONSHIP
Rule 1.11: Special Conflicts Of Interest For Former
And Current Government Officers And Employees

(a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government: 

    (1) is subject to Rule 1.9(c); and 

    (2) shall not otherwise represent a 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, to the representation.

(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:

     (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
    
     (2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.

(c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term "confidential government information" means information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.

(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee: 

    (1) is subject to Rules 1.7 and 1.9; and 
    
    (2) shall not:

         a. participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or

         b. negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).

(e) As used in this Rule, the term “matter” includes:

    (1) any judicial or other proceeding involving a specific party or parties, including an application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other proceeding; and 

    (2) any other matter covered by the conflict of interest rules of the appropriate government agency. 

NEW HAMPSHIRE COMMENT

 
1.     New Hampshire reordered the language in ABA Model Rule 1.11(e)(1) to clarify that the term “matters covers only proceedings, judicial or otherwise, involving specific parties and not general proceedings such as rulemaking or regulation.

2.     In determining whether a lawyer is subject to the prohibition under section (d), a number of factors should be taken into account.  These factors include, but are not limited to, whether the lawyer supervised or primarily handled a matter, whether material progress had been achieved in the matter and whether the matter was reassigned before any substantive review or tasks had been conducted.  In some cases, a lawyer’s supervisory status over matters handled in a public office may make it impossible to negotiate for private employment unless the public employment is terminated prior to such negotiation.  In most instances, however, recusal from matters in which the potential employer is involved would be sufficient to avoid the appearance of a conflict of interest.

3.     It should be noted that public offices, agencies, boards and commissions may have internal policies regarding conflicts of interest, which in some instances are more restrictive than the New Hampshire Rules of Professional Conduct.


ABA RULE 1.11

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