ER 1.11 Special Conflicts of Interest for Former and Current Government Officers and Employees

The Standard

A lawyer moving between public and private practice may have a conflict of interest in participating in certain matters.  A lawyer who obtains confidential government information about a person while working for the government cannot later represent a private client whose interests are adverse to that person.

The Limitation

The conflict applies to matters in which the lawyer personally and substantially participated as a government lawyer before the change in employment. A lawyer with an ER 1.11 conflict based on former employment with a government agency can seek the informed consent confirmed in writing from the government agency. In general, if a lawyer moving to private practice has such a conflict it will not be imputed to the firm if proper screening measures are implemented.  Likewise, if a lawyer joining government practice has such a conflict, it will not be imputed to the government agency if the agency can implement proper screening measures.


Is a “cooling off” period required before a former government lawyer can represent a client before a governmental agency?

Yes, although this cooling off period is not found in the Rules of Professional Conduct. For former state employees, Arizona Revised Statutes (A.R.S.) § 38-504(a) imposes a cooling off period on former government employees, including lawyers. This statute prohibits a former government lawyer from representing a party before a public agency where the employee worked within the last 12 months.  It also prohibits a former government lawyer from receiving any compensation for work on a matter with which the lawyer was directly concerned and in which the lawyer personally participated during employment with the governmental entity during the last 12 months. In addition, § 38-504(b) prohibits a former state government lawyer from using or disclosing confidential information for a two-year period after leaving government employment, unless the lawyer receives appropriate authorization. For more detailed information, consult with the general counsel for your state agency.


Lawyers formerly employed by the federal government are subject to similar restrictions. If you find yourself in this situation, it’s best to consult with a Designated Agency Ethics Official (DAEO) within your federal agency for a post-government employment ethics briefing.

Does ER 1.11 sunset at some point?

No. ER 1.11 applies to lawyers moving between public and private practice throughout the duration of their practice of law.

Does ER 1.11 apply the same standard as ER 1.9?

ER 1.9(a) is the ethics rule that applies to conflicts of interests for former private-to-private clients.  ER 1.11(a) is analogous to ER 1.9(a), but it does have some differences in application. For example, under ER 1.9(a) if a lawyer has a former client conflict it is generally imputed to the lawyer’s firm. Under ER 1.11(a), the conflict is still imputed but the opportunity for screening to remedy an ER 1.11(a) conflict is broader. The application of ER 1.11 is also narrower than ER 1.9 because ER 1.9 applies a broader definition of matters that will cause a conflict.

What qualifies as the same matter under ER 1.11?

The term “matter” under ER 1.11 is narrower than what qualifies as a “matter” under ER 1.9. Under ER 1.9, a conflict of interest arises if lawyer represents a new client in the same or a substantially related matter in which lawyer represented a former client. ER 1.11(a) provides a conflict will arise only regarding a particular matter involving specific parties. Specifically, ER 1.11(d)(1) defines “matter” as any “any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties.”

What qualifies as a matter in which a lawyer “personally and substantially participated”?

“Personally and substantially participated” has been described as a matter that a lawyer was “personally involved to a material degree in the investigative or deliberative process regarding the transactions in question . . . . The level of involvement . . . must have been aware[ness] of the details of the investigation and . . . some hand in its resolution and day to day progress.” Sec. Gen. Life Ins. Co. v. Superior Ct. In & For Yuma Cnty., 149 Ariz. 332, 334 (1986).  

Does ER 1.11 still apply even if my client is not adverse to the government?

Yes. ER 1.11 does not require the subsequent private representation be adverse to the government or its interests. On this issue, ER 1.11 is broader than the private-to-private conflicts rule under ER 1.9.

Who can give informed consent at a governmental agency?

A conflict can be “cured” if the appropriate government agency gives informed consent in writing.  Comment 2 of ER 1.11 provides, “In most cases, the appropriate individual will be the chief legal officer for the governmental agency . . . .”

What qualifies as confidential government information?

Confidential government information can be obtained by a lawyer at any point while lawyer is working for a government agency and does not just apply to information related to representation of the government agency.  ER 1.11, however, defines “confidential government information” narrowly. ER 1.11(e) provides that “confidential government information” is “information which 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.”

Does a conflict arise if I am negotiating private employment?

ER 1.11 provides a bright line rule against seeking private employment with an opposing party or an opposing counsel’s firm.  ER 1.11(c)(2) prohibits government lawyers from “negotiat[ing] 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.” This rule does not allow the conflict to be cured through agency consent.    

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