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Government Service and Going Private


See Also:

Video-Course: Conflicts of Interest - Module 4 of 5

Terms:

“Ethical Wall” 
A term used to describe an imaginary screen established between an attorney who is conflicted out of representation and the rest of an attorney’s firm. The goal is to ensure the attorney’s conflict has no impact on the firm’s representation of a client. Also known as a “screen” or “Chinese Wall.” 


Government attorneys are often professionals with great power and great responsibility to the public. Those responsibilities do not end when their service to the government ends. A lawyer and her firm or business must be careful not to foster an appearance of impropriety due to obvious conflicts of interest with former government officials. See Waters v. Kemp, 1986 U.S. Dist. LEXIS 19178 (S. Dist. Ga. 1986). 

Unless there are rules to the contrary, a lawyer may generally not represent a private client in a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the relevant government agency consents after consultation. See Model Rule 1.11. 

A former government lawyer’s conflict of interest is not necessarily imputed to his new firm in a way that would disqualify the new firm from representing a client. The rules hold that the disqualified former government lawyer must be “screened” from any participation in a related matter, and the government agency must be provided with written notice about the perceived conflict. 

The “screen” is often known as an “ethical wall” or a “Chinese Wall” (named after the Great Wall of China). The lawyer must be "screened"; he must be prevented from any contact with sensitive documents, materials or, perhaps, individuals, so that the risk of impropriety is neutralized. The lawyer also may not obtain any portion of the fee that the firm earns from the representation. Maintaining an “ethical wall” is easier in a firm that has a number of different offices. If the former government lawyer is physically separated from the source of potential conflict, the appearance of impropriety can more easily be avoided. 

Take the situation of a former assistant prosecutor moving on to a private firm, whose client was investigated for a crime while the prosecutor was still with the government. Even if the assistant prosecutor had no tangible connection with the investigation of the client, there would nonetheless remain a potential conflict of interest. The chief concern is the appearance of possible impropriety to the public. To remedy this problem, the lawyer could be screened from participation in the client’s case. It is possible the government, upon notification, would allow the firm to represent the client. The firm might want to reconsider the representation, however, just to make sure there are no public assumptions of impropriety. See United States v. Miller, 624 F.2d 1198 (3rd Cir. 1980).

As we discussed before, the rules strive to assure that the lawyer or firm does not have access to confidential information that might be used to the disadvantage of the opponent. In the case above, the lawyer’s confidential information regarding the client could, at least theoretically, be used to thwart the government’s case.

Negotiation for Private Employment

Usually government attorneys are prohibited from negotiating for private employment with a party in a matter in which the lawyer participated “personally and substantially” during his government employment. See Model Rule 1.11. The chief concern is that the government attorney will use confidential government information to assist a private client. 

EXAMPLE: An attorney for the IRS who is involved in the financial audit of Coca-Cola should think very carefully about the consequences of appearing unethical before he accepts an offer to leave the IRS and join the tax department at Coca-Cola. The Model Rules hold that participating “personally and substantially” in tax matters related to Coca-Cola while in government service would render unethical the attorney’s negotiation for employment with Coca-Cola. Again, the major concern is that the public will assume that Coca-Cola is “paying off” government officials to gain strategic insight into the mechanics of the government audit. 

An exception to the prohibition against negotiating for private employment while participating substantially in a government matter is made for a law clerk seeking to obtain a position working as a clerk for a judge. Law clerks oftentimes hold year-long or two-year positions with judges, and may end up in a private firm that appeared before the court during the clerk’s tenure. This is generally allowed, even though there is a potential conflict of interest.