ABA-409
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| A former government lawyer who participated "personally and substantially" in a "discrete and isolatable transaction or set of transactions between identifiable parties" may not be involved on behalf of or adverse to the government without the government's consent, although other lawyers in the firm may do so if the former government lawyer is screened. In addition, the duty of maintaining confidences may prevent the former government lawyers' involvement adverse to the government "even where the representation involves general agency rules or policies and not a 'particular' matter (although the screening mechanism would still work). Therefore, the general conflicts rule would not bar a former government lawyer's challenge to agency rules even if the lawyer were "personally involved in their development and implementation" (because "rule making is generally not deemed to be a 'particular matter'"), although the former government lawyer might be prohibited from such a representation because of the confidentiality rule.These rules might apply to lawyers "specially retained" to represent the government in addition to full-time government employees, although "a viable argument can be made" that such lawyers' conflicts situations will be governed by the confidentiality rule and not the former government lawyer rule. The rule's definition of "matter" does "not include general agency regulatory and policymaking activity" or briefing of abstract principles of law," and thus is "substantially narrower than the definition of matter" under the confidentiality rule. A former government lawyer's "general knowledge" of "policies and practices of her former agency" are ordinarily not be considered disqualifying under the confidentiality rule. "Most lawyers who have represented organizational clients will inevitably have general information about the inner workings of the client, but we do not suppose such information is necessarily disqualifying" under the confidentiality rule. |