Rule 4-1.11 — Special Conflicts of Interest for Former and Current Government Officers and Employees

Comment (verbatim from The Florida Bar)

A lawyer who has served or is currently serving as a public
officer or employee is personally subject to the rules of professional
conduct, including the prohibition against concurrent conflicts of
interest stated in rule 4-1.7. In addition, such a lawyer may be
subject to statutes and government regulations regarding conflict of
interest. Such statutes and regulations may circumscribe the
extent to which the government agency may give consent under this
rule. See terminology for definition of informed consent.
Subdivisions (a)(1), (a)(2), and (d)(1) restate the obligations of
an individual lawyer who has served or is currently serving as an
officer or employee of the government toward a former government
or private client. Rule 4-1.10 is not applicable to the conflicts of
interest addressed by this rule. Rather, subdivision (b) sets forth a
special imputation rule for former government lawyers that provides
for screening and notice. Because of the special problems raised by
imputation within a government agency, subdivision (d) does not
impute the conflicts of a lawyer currently serving as an officer or
employee of the government to other associated government officers
or employees, although ordinarily it will be prudent to screen such
lawyers.
Subdivisions (a)(2) and (d)(2) apply regardless of whether a
lawyer is adverse to a former client and are thus designed not only
to protect the former client, but also to prevent a lawyer from
exploiting public office for the advantage of another client. For
example, a lawyer who has pursued a claim on behalf of the
government may not pursue the same claim on behalf of a later
private client after the lawyer has left government service, except
when authorized to do so by the government agency under

subdivision (a). Similarly, a lawyer who has pursued a claim on
behalf of a private client may not pursue the claim on behalf of the
government, except when authorized to do so by subdivision (d). As
with subdivisions (a)(1) and (d)(1), rule 4-1.10 is not applicable to
the conflicts of interest addressed by these subdivisions.
This rule represents a balancing of interests. On the one
hand, where the successive clients are a government agency and
another client, public or private, the risk exists that power or
discretion vested in that agency might be used for the special
benefit of the other client. A lawyer should not be in a position
where benefit to the other client might affect performance of the
lawyer’s professional functions on behalf of the government. Also,
unfair advantage could accrue to the other client by reason of
access to confidential government information about the client’s
adversary obtainable only through the lawyer’s government service.
On the other hand, the rules governing lawyers presently or
formerly employed by a government agency should not be so
restrictive as to inhibit transfer of employment to and from the
government. The government has a legitimate need to attract
qualified lawyers as well as to maintain high ethical standards.
Thus, a former government lawyer is disqualified only from
particular matters in which the lawyer participated personally and
substantially. The provisions for screening and waiver in
subdivision (b) are necessary to prevent the disqualification rule
from imposing too severe a deterrent against entering public
service. The limitation of disqualification in subdivisions (a)(2) and
(d)(2) to matters involving a specific party or parties, rather than
extending disqualification to all substantive issues on which the
lawyer worked, serves a similar function.
When a lawyer has been employed by 1 government agency
and then moves to a second government agency, it may be
appropriate to treat that second agency as another client for
purposes of this rule, as when a lawyer is employed by a city and
subsequently is employed by a federal agency. However, because
the conflict of interest is governed by subdivision (d), the latter
agency is not required to screen the lawyer as subdivision (b)
requires a law firm to do. The question of whether 2 government

agencies should be regarded as the same or different clients for
conflict of interest purposes is beyond the scope of these rules. See
rule 4-1.13 comment, government agency.
Subdivisions (b) and (c) contemplate a screening arrangement.
See terminology (requirements for screening procedures). These
subdivisions do not prohibit a lawyer from receiving a salary or
partnership share established by prior independent agreement, but
that lawyer may not receive compensation directly relating the
attorney’s compensation to the fee in the matter in which the lawyer
is disqualified.
Notice, including a description of the screened lawyer’s prior
representation and of the screening procedures employed, generally
should be given as soon as practicable after the need for screening
becomes apparent.
Subdivision (c) operates only when the lawyer in question has
knowledge of the information, which means actual knowledge; it
does not operate with respect to information that merely could be
imputed to the lawyer.
Subdivisions (a) and (d) do not prohibit a lawyer from jointly
representing a private party and a government agency when doing
so is permitted by rule 4-1.7 and is not otherwise prohibited by law.
For purposes of subdivision (e) of this rule, a “matter” may
continue in another form. In determining whether 2 particular
matters are the same, the lawyer should consider the extent to
which the matters involve the same basic facts, the same or related
parties, and the time elapsed.
Amended July 23, 1992, effective Jan. 1, 1993 (605 So.2d 252); amended
March 23, 2006, effective May 22, 2006 (933 So.2d 417); amended July 7,
2011, effective October 1, 2011 (67 So.3d 1037).