“Starting a job search when you work in the federal government is different from the way you’d approach it in the private sector. Everything has to be totally aboveboard to avoid the appearance of impropriety. You should notify ethics that you’re looking for new employment —a notification that’s best made in a face-to-face meeting with the agency’s ethics counsel.”
On-ramping refers to re-entering the workforce—or one’s chosen profession—after being away from it for whatever reason. In the case of government officials and politicians, the re-entry into the private practice of law can be facilitated by not only the experience the new ‘law firm applicant’ brings with him or her but also by virtue of the contacts, connections, and accumulation of ‘knowing the way around’ be it Capital Hill or the state capital.
But accompanying the impressive civil service resume is a potential ethics minefield that must be carefully navigated in order not to run afoul of the Rules of Professional Responsibility.
From Politician to Private Practitioner
Scores of former politicians—from governors Chis Christie and George Pataki to senators John Edwards and Chris Dodd—have made the transition from politician to law partner after leaving public office. For politicians of such caliber, it is a seller’s market, with law firms vying to onboard politicians with the experience—and connections, as well as political savvy—to represent their clients before regulatory agencies, committees, and in various lobbyist capacities. Indeed, the switch from public service to private practice is quite common, with many senior partners at esteemed law firms having come from government positions. But it is not just elected officials who are in demand after leaving public service, but also federal prosecutors, heads of federal and state agencies, and other civil servants whose skills are in demand post-government.
When to Switch
For those transitioning to private practice, the timing of their move can be an important factor in maximizing their market potential. Waiting until the end of one’s term in office, or until the end of an administration when a changing of the bureaucratic guard takes place, can result in a less advantageous re-entry to private firms due to the fact that the supply of government lawyers applying for non-government jobs at that point will be at its peak. In fact, many headhunters advise that the best time to obtain a prized law firm position is well before the post-midterm election rush.
Bringing Added Value
A recruiter who specializes in assisting attorneys who are switching from a government position to private law firms advises that the 3rd year of an administration—and not the last year—is an ideal time to make a lateral move to private practice. The third year is considered a ‘sweet spot’ for such a lateral move because attorneys who are working with the current administration—whether political appointees or other career officials—have played an important role in shaping recent policy, and they, therefore, possess a keen understanding of where the agency is headed and what regulatory policies are evolving. That gives such candidates added value to the firms seeking them out. It certainly boosts a firm’s resume if they can boast of a partner who is fresh out of the agency for which their clients will need good guidance; however, it is imperative to be well-versed in the ABA Rule 1.11 limitations that apply (see below). The newly adopted rules may still be murky and not yet tested judicially, and having counsel who participated in the evolutionary agency process is a significant attraction.
Notifying Your Agency
According to former EPA attorney David Edelstein, it’s a good idea to obtain administrative approval before accepting anything, including an interview, lunch, or a domestic flight to meet with a firm. In addition, a private firm’s ethics department will want disclosures as to conflicts before taking the next step in recruiting an exiting government attorney. Using the services of a recruiter who specializes in outboarding government attorneys is highly recommended for the purposes of resume refinement, evaluation of marketable skills, and directing the attorney as to which firms would make the best fit for the attorney’s new professional home.
What the Bar Rule Provides
ABA Rule 1.11: ‘Special Conflicts of Interest for Former & Current Government Officers & Employees’, sets forth the special ethical considerations that apply when attorneys leave a government position and enter the private practice of law:
(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 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.
Several other ethical strictures apply, but the foregoing provides a sketch of just how seriously the bar views the potential for conflict of interest, breach of confidentiality, and other legal ethics issues pertaining to the on-ramping government lawyer. The career opportunities that await the attorney who has retired from any level of government service are substantial, but must be navigated according to the rules.
Executive Summary
The Issue
What are some of the issues pertaining to the attorney who leaves government service for the private practice of law?
The Gravamen
Planning ahead and timing one’s transition according to the termination of an administration or the attorney’s own term in office are critical factors in a successful re-entry to practicing law after public service.
The Path Forward
Minding the rather extensive ethics rules can prevent headaches for both the departing attorney and the firm that he or she has joined.
Action
The Winds of Change:
Timing is everything, and knowing when the optimum time will be to make the transition from public service means properly reading the change in agency administration— or the likely results of a midterm election.
No Secrets from Agency:
Being candid and forthright with one’s employer about the proposed career change is not only a practical step to take but also one that ensures that agency rules of ethics are respected and adhered to.
Conflicts Check:
Be equally upfront with the ethics department of your putative new firm, disclosing any and all information that might raise a red flag as to conflict issues.
Use a Recruiter:
A recruiter who specializes in transitioning lawyers from the government to private firm positions can be of invaluable service both to helping you frame your experience and value and also to giving you good placement direction.
Further Reading:
- https://abovethelaw.com/2022/03/moving-from-government-to-private-practice-start-your-search-before-midterm-elections/
- https://www.bcgsearch.com/article/900045600/How-Difficult-Is-It-Right-Now-to-Transition-from-a-Government-Position-to-Private-Practice/
- https://legaljob.com/transition-from-government-to-firm-part-two/
- https://www.vorys.com/publication-From-Govt-To-Firm-Happily-Changing-Careers-Midstream
- https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_11_special_conflicts_of_interest_for_former_current_government_officers_employees/
