Below is the abstract for “As the Revolving Door Turns: Government Lawyers Entering or Returning to Private Practice and Conflicts of Interest,” available for download on SSRN.
Government lawyers regularly leave public service for private law practice — often through the same revolving door that launched their public careers. The law firms they join or to which they return welcome them because of the experience they gained, and the expertise they developed, while in the government. The challenge for former government lawyers and their law firms is recognizing and managing conflicts of interest that sometimes arise out of lawyers’ government service. To address the special conflict of interest concerns that emerge from the revolving door of government service, the ABA formulated Model Rule 1.11. With a single exception, Model Rule 1.11 displaces other ethics rules that generally govern conflicts of interest in lawyers’ successive representations. In so doing, Model Rule 1.11 attempts to balance the competing interests in play when a matter spans a lawyer’s government service and private practice.
Most conflict of interest controversies involving former government lawyers pivot on the scope of the matter that is alleged to be the source of the conflict, and the degree of the lawyer’s participation in the matter. To a lesser but nonetheless critical extent, former government lawyers’ alleged acquisition of confidential government information also spawns disputes. Whether former government lawyers should be disciplined or disqualified for conflicts of interest tied to their public service always requires case-specific inquiry. Avoiding discipline and disqualification, and further avoiding imputed disqualification of the lawyer’s law firm, requires former government lawyers and their law firms to understand and to be able to navigate the uniqueness of Model Rule 1.11. This article provides a practical guide for doing so.