Iowa R. Prof'l Conduct 32:1.11

(a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a

public officer or employee of the government:

(1) is subject to rule 32:1.9(c); and

(2) shall not otherwise represent a client in connection with a matter in which the lawyer

participated personally and substantially as a public officer or employee, unless the appropriate

government agency gives its informed consent, confirmed in writing, to the representation.

(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a

firm with which that lawyer is associated may knowingly undertake or continue representation

in such a matter unless:

(1) the disqualified lawyer is timely screened from any participation in the matter and is

apportioned no part of the fee therefrom; and

(2) written notice is promptly given to the appropriate government agency to enable it to

ascertain compliance with the provisions of this rule.

(c) Except as law may otherwise expressly permit, a lawyer having information that the

lawyer knows is confidential government information about a person, acquired when the

lawyer was a public officer or employee, may not represent a private client whose interests

are adverse to that person in a matter in which the information could be used to the material

disadvantage of that person. As used in this rule, the term “confidential government

information” means information that 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. A firm with which that lawyer is associated may undertake or continue representation

in the matter only if the disqualified lawyer is timely screened from any participation in the

matter and is apportioned no part of the fee therefrom.

(d) Except as law may otherwise expressly permit, a lawyer currently serving as a public

officer or employee:

(1) is subject to rules 32:1.7 and 32:1.9; and

(2) shall not:

(i) participate in a matter in which the lawyer participated personally and substantially

while in private practice or nongovernmental employment, unless the appropriate government

agency gives its informed consent, confirmed in writing; or

(ii) negotiate for private employment with any person who is involved as a party or as lawyer

for a party in a matter in which the lawyer is participating personally and substantially, except

that a lawyer serving as a law clerk to a judge, other adjudicative officer, or arbitrator may

negotiate for private employment as permitted by rule 32:1.12(b) and subject to the conditions

stated in rule 32:1.12(b).

(e) As used in this rule, the term “matter” includes:

(1) 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, and

(2) any other matter covered by the conflict of interest rules of the appropriate government

agency.

(f) Prosecutors for the state or county shall not engage in the defense of an accused in any

criminal matter during the time they are engaged in such public responsibilities. However,

this paragraph does not apply to a lawyer not regularly employed as a prosecutor for the state

or county who serves as a special prosecutor for a specific criminal case, provided that the

employment does not create a conflict of interest or the lawyer complies with the requirements

of rule 32:1.7(b).

Comment

[1] A lawyer who has served or is currently serving as a public officer or employee is personally

subject to the Iowa Rules of Professional Conduct, including the prohibition against concurrent

conflicts of interest stated in rule 32:1.7. 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 rule

32:1.0(e) for the definition of informed consent.

[2] Paragraphs (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 32:1.10 is not applicable to the conflicts of interest addressed by

this rule. Rather, paragraph (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, paragraph (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.

[3] Paragraphs (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 paragraph (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

paragraph (d). As with paragraphs (a)(1) and (d)(1), rule 32:1.10 is not applicable to the conflicts of

interest addressed by these paragraphs.

[4] 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 paragraph (b) are necessary to prevent

the disqualification rule from imposing too severe a deterrent against entering public service. The

limitation of disqualification in paragraphs (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.

[5] When a lawyer has been employed by one 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 paragraph (d), the latter agency is

not required to screen the lawyer as paragraph (b) requires a law firm to do. The question of whether

two 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 32:1.13 comment [9].

[6] Paragraphs (b) and (c) contemplate a screening arrangement. See rule 32:1.0(k) (requirements

for screening procedures). These paragraphs 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 lawyer’s compensation to the fee in the matter in which the lawyer

is disqualified.

[7] 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.

[8] Paragraph (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.

[9] Paragraphs (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 32:1.7 and is not otherwise prohibited by law.

[10] For purposes of paragraph (e) of this rule, a “matter” may continue in another form. In

determining whether two 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.