Model Rule of Professional Conduct 1.11(c) protects a person from the misuse of certain information that the Government used its authority to acquire.

The Rule provides for disqualification in some circumstances to protect against the misuse of certain government information adversely to any “person” (i.e. an individual or an entity) to whom the information relates, (which may or may not be the person from whom the government obtained the information), rather than adversely only to a former client.

In addition, the Rule refers to confidential government information about a person ‘acquired when the lawyer was a public officer or employee,’ indicating that the rule applies irrespective of whether lawyers served in a representational capacity when they acquired the confidential government information.

The Rule does not protect all government information but only “information that has been obtained under governmental authority and which … 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.” Comment [4] to Rule 1.11 explains that government lawyers are prohibited from disclosing or using confidential government information about a person as defined in the Rule because the Government itself has an obligation to protect such information.  If the lawyer was serving in a representative capacity, Rule 1.11(c) protects information also protected by Rule 1.6. However, Rule 1.11(c) may also extend to information not protected under 1.6 if the information was acquired by a lawyer while serving as a public officer or employee.

Information “obtained under government authority” includes information obtained pursuant to a grand jury subpoena, a search warrant, a regulatory subpoena, or other Government power.

The Rule does not require that the confidential government information has been or will be used by the lawyer, only that it could be used to the material disadvantage of a person.

It is sometimes observed that Rule 1.11(c) applies to lawyers who are former public officers and employees, which is true. But the Rule does not apply exclusively to lawyers who formerly served as public officers or employees. Rule 1.11(c) applies equally to a full or part time lawyer who currently serves or formerly served as a government officer or employee when the lawyer (1) represents a private client outside of the lawyer’s government employment and (2) possesses information, acquired when the lawyer was a government officer or employee, that the lawyer knows is confidential government information that could be used to the material disadvantage of a person whose interests are adverse to the lawyer’s private client in a matter.

Finally, the term “private client” also includes public entities and officials whom the lawyer represents in private practice, if those clients are not legally entitled to employ the confidential information. This conclusion is consistent not only with the Rule’s purpose but also with a federal appellate decision, General Motors Corp. v. City of New York, 501 F.2d 639 (2d Cir. 1974), which was well-known to the Ethics 2000 Commission when it drafted Rule 1.11. Applying New York’s version of the Code of Professional Responsibility, the court disqualified a former United States Department of Justice lawyer – who had transitioned from government service to private practice in a law firm – from representing the city of New York. The city was suing General Motors and wanted to hire the lawyer and his firm. While assigned to the Department’s Antitrust Division, the lawyer had substantial responsibility in a Department of Justice antitrust suit against General Motors. The Court, interpreting New York’s Code of Professional Responsibility, found that the lawyer was engaged in “private employment” because the lawyer was practicing in a private firm.

 

ABA Formal Opinion No. 509 (Feb. 28, 2024).