Firms that employ former government workers that engage in lobbying or other active interaction with government agencies must take special care to comply with applicable ethics rules.
In the United States, the Federal Ethics in Government Act (Section 207) and Rule 1.11 of the DC Bar Rules control. Similar rules apply in many state and local jurisdictions. These rules prevent lawyers from working on matters in private practice that they dealt with while working as government employees. In some jurisdictions, this ban is permanent. In others, lobbying may be allowed after an embargo as short as one year.
While violations are rare, the stakes are high. The Federal Ethics in Government Act is a criminal statute, enforce by the US Department of Justice. With state and local jurisdictions taking their own rules similarly seriously, law firms must take all reasonable steps to ensure compliance. This includes not only making sure lawyers are properly educated but also preventing accidental infractions. Importantly, these steps must protect against even the appearance of improper behavior, as external perceptions can be damaging.
Adopted by most states (some adding supplemental enforcement requirements), ABA Model Rule 1.11 defines strict screening and compliance rules that apply to lawyers and paralegal support staff.
Firms Must Set Up Screens Immediately
In matters involving former government lawyers who had prior access to relevant, confidential information, those lawyers must be “screened from any form of participation in the matter” by the firm. Screens must go into effect before the lawyer joins the firm, or, in the case of a new matter that relates to an existing lawyer’s past government experience, prior to accepting the matter. ABA Rule 1.11(c)
Firms Must Notify Affected Parties At Once
Prior to taking on the matter, the firm must provide written notice to the relevant government agency and other parties (ABA Rule 1.11(d). In the case of the District of Columbia, another lawyer affiliated with the matter must also affirm in writing that all other affiliated lawyers are aware of the screen, and outline the specific screening procedures the firm has put in place (D.C. Rule 1.11(d)(2)).
Screens Should Actively Restrict Access to Information
D.C. Bar Opinions 227 and 279, and related court decisions detail screening procedures that include the use of information barriers to supplement notification requirements: “...a screen should prohibit… access by the disqualified lawyer to any files (including electronically stored files) of the matter from which she is screened.”
The Intapp Solution – Intapp Walls
Intapp Walls allows firms to establish ethical screens between lawyers and staff who were formerly government employees and any individuals or teams working on matters involving their former employers. With an automated approach that curbs access across a broad variety of information repositories, Intapp Walls helps firms prevent accidents. With extensive logging and audit capabilities it also helps verify compliance and combat any appearance of impropriety or external challenge.