1. COUNSELING THE GOVERNMENT LAWYER: Revolving Doors and More APRL 2011 Midyear Meeting Atlanta GA 10 February 2011

2. MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS
Basic Sources of Regulation
Federal/State/Local Laws and Regulations
Ethics Rules

3. MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS
Federal Regulatory Framework
Seeking Employment, 5 C.F.R. Part
Standards of Conduct, 5 C.F.R. Part 2635
Post Employment 18 U.S.C. §207, 5 C.F.R. 2641
Sharing Fees 18 U.S.C. §203

4. MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS
Limitations
Seeking employment
Positions with non-Federal entities
Post employment
Executive branch employees
Rules apply licensed lawyer working in non-lawyer position

5. MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS
Seeking Employment
When you are seeking employment, 5 C.F.R. Part
with persons whose financial interests
would be directly and predictably affected by
particular matters in which you are
participating personally and substantially,
you need to disqualify yourself 5 C. F. R. Part (b)(2),
or get written authorization, 5 C.F.R. Part , and you will need to
remember certain basic principles. 5 C.F.R. Part
and check your bar rules.

6. MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS
Post Employment — Permanent Bar
Prohibits any communication to or appearance before an employee of the United States
with the intent to influence,
on behalf of any other person regarding a
particular matter involving a specific party or parties,
in which s/he participated personally and substantially as a government employee,
and in which the United States is a party or has a direct and substantial interest. 18 U.S.C. §207, 5 C.F.R. Part (a).

7. MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS
Post Employment — Two-Year Bar
Similar to permanent bar, but
applies to all matters under the supervisory responsibility of the former government employee during his or her last year of government service, and
disqualification is limited to two years, 18 U.S.C. §207(a)(2), 5 C.F.R. Part (a).

8. MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS
Post Employment — One-Year Bar
No aiding and advising in trade or treaty negotiations, 18 U.S.C. §207(b), 5 C.F.R
No appearance or communication for former senior employee, 18 U. S. C. §207(c), 5 C.F.R. §
No aiding or representing a foreign entity before United States for senior and very senior employees, 18 U. S. C. §207(f), 5 C.F.R. Part

9. MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS
Senior Employees — Two-Year Bar
Former very senior employees
subject to a two year bar on communication
with former agency and
certain government officials, 18 U.S.C. §207(d), 5 C.F.R. Part

10. MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS
Sharing Fees
Prohibition from receiving compensation for “representational services”
in connection with a particular matter
in which the United States
is a party or has a direct and substantial interest 18 U. S. C. §203.

11. MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS
Applicable Ethics Rules
ABA Model Rule 1.11 (Government Officials)
ABA Model Rule 1.12 (Judges)

12. MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS
ABA Model Rule 1.11
Prohibits post government employment on matters where lawyer participated personally and substantially or where lawyer has “confidential government information”
Adversity not required
Prohibition is waiveable
Prohibition not imputed if lawyer is timely screened and does not share in fee

13. MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS
ABA Model Rule 1.11 (continued)
Covers only matters “involving specific party or parties,” e.g., not general rulemakings.
Also covers current government officials and confirms that they are subject to Rules 1.7 and 1.9
Prohibits current government officials from negotiating for employment with parties to matter in which officials is participating personally and substantially

14. MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS
ABA Model Rule 1.12
Prohibits lawyers from representing parties in matters where they participated personally and substantially as judges or law clerks
Prohibits judges from negotiating for employment with parties or lawyers to a matter in which judge is participating personally and substantially
Law clerk can seek employment on such matters if they inform the judge

15. MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS
A career journey — Scenario #1
A law student is an intern for a judge during the school year and then is a summer associate at law firm which has cases before the judge.
Does the firm have to withdraw?
Can the law student work on the cases now before the judge he interned for?

16. MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS
A career journey — Scenario #2
The law student graduates, passes the bar and is a judicial law clerk for a year. In the middle of the clerkship year, the clerk starts to look for jobs and wants to apply to a firm which has multiple cases before the judge.
Can the clerk negotiate for employment with firms with active cases before the judge?
Can the law clerk work on cases before the judge where firms he is applying to are counsel?

17. MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS
A career journey — Scenario #3
The law clerk takes a job at a local firm which has a number of pending cases before the clerk’s judge.
Does the firm have to withdraw?
Can the lawyer appear before his former judge?

18. MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS
A career journey — Scenario #4
Unhappy with the experience of an associate in private practice, the lawyer gets a job at the SEC.
Can the lawyer litigate against his old firm?
Can the lawyer work on cases that were at his firm when he was there?
Cases that he worked on?

19. MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS
A career journey — Scenario #5
After five years at the SEC, the lawyer wants more trial experience and gets a job with a nearby United States Attorney’s Office. He is asked to prosecute a case that he worked on while at the SEC.
Can he do so?
What if the SEC objects?

20. MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS
A career journey — Alternate Scenario #5
After five years at the SEC, the lawyer wants more trial experience and gets a job with a nearby State’s Attorneys office. He is asked to prosecute a case that he worked on while at the SEC.
Can he do so?
What if the SEC objects?

21. MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS
A career journey — Scenario #6
Assume that lawyer, while working at the SEC or DOJ in D.C., is only licensed in faraway state A. Lawyer violates model rule 4.2 (talking with individual known to be represented) during an investigation prior to charges being filed. DOJ does not believe 4.2 applies pre-arrest or pre-indictment. State A thinks it does.
Does the lawyer have possible exposure to discipline from State A?

22. MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS
A career journey — Scenario #6 (continued)
In re Doe, 801 F. Supp. 478 (D.N.M. 1992) (As only state in which DOJ attorney was admitted, New Mexico had jurisdiction to investigate ethics complaint regarding a violation of Rule 4.2 that occurred in D. C.; ethics prosecution should not have been removed to Federal Court); U.S. v. Ferrara, 847 F. Supp. 478 (D.N.M. 1992) (supremacy clause did not prevent New Mexico from asserting jurisdiction over AUSA employed in D. C.); In re Howe, 940 P.2d 159 (N.M. 1997) (AUSA in question received public censure for Rule 4.2 violations + hefty costs). 

23. MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS
A career journey — Scenario #7
Ex: Here in Georgia, O.C.G.A et seq., contains a general code of conduct and conflict of interest prohibitions; Ethics in Government Act, O.C.G.A et seq., concerns acceptance of honoria and postemployment lobbying restrictions.
There is generally no direct conflict between professional responsibility standards and government ethics legislation.
Whichever has more rigorous standard applies to any given situation.

24. MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS
A career journey — Scenario #8
The lawyer gets a job at a local private firm. While with the US Attorney’s Office, he defended a TSA agent in a civil suit brought by travelers claiming to be the victims of overly aggressive searches. The case is on-going when he leaves. His new firm is agreeable to him taking the case pro bono.
Can he do so?

25. MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS
A career journey — Scenario #9
While at the SEC, the lawyer did a stint in the branch that drafted regulations implementing portions of the Dodd-Frank financial reform bill.
In private practice, he is asked to defend a client accused of violating those regulations?
Can he do so?

26. MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS
A career journey — Scenario #10
In private practice, the lawyer is asked to serve as an expert witness in a legal malpractice suit and testify about the standard of care for defending a target of an individual subject to an SEC investigation.
Can he do so?

27. MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS
A career journey — Scenario #11
Our lawyer is tired of the private sector and federal practice. He envisions his golden years in the noble endeavor of state public employment.
Besides the Rules of Professional Conduct in the lawyer’s jurisdiction, lawyer will also be subject to governmental ethics legislation, applicable to most public employees.
The National Conference of State Legislatures’ website contains a list and links to statutes in all 50 states at

28. MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS
A career journey — Scenario #12
The lawyer’s children have graduated from college and have become self-sufficient (assume this to be possible). The lawyer can afford to go back into government and applies to be the US Attorney for his local district.
Can he still defend clients prosecuted by that Office?
What disclosures does he have to make, if any?
When in the application process do the disclosures need to be made?

29. MOBILITY AND ETHICS FOR GOVERNMENTAL LAWYERS
A career journey — Scenario #13
The lawyer becomes the US Attorney and stays in that position until there is a change of administration. At that point, he rejoins his old firm as a senior counsel.
Can he or his firm defend clients whose prosecutions were begun under his tenure as US Attorney?
Of course, as US Attorney, his name was on every pleading in every case filed by his Office.

30. WHAT GOVERNMENTAL ETHICS LEGISLATION TYPICALLY COVERS
When a public employee may discuss future employment with vendors or other interested persons
How soon may a lawyer appear before his/her agency after leaving public employment?
Moonlighting
Use of confidential information
Conflicts of interest financial or familial interests

31. CONTACT INFORMATION
Thomas B. Mason
Zuckerman Spaeder LLP
George R. Clark
Attorney at Law
Peggy Love
Law Firm Name
Sherri D. Goodman
Goodman Advocay