Rule 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 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 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

ernment 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 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

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 1.13 Comment [6].

[6] Paragraphs (b) and (c) contemplate a screening arrangement. See

Rule 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

ragraphs (b) and (c) contemplate a screening arrangement. See

Rule 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 Rule1.7 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.

NOTES TO DECISIONS

Conflicts of interest.

Screening.

Conflicts of interest.

Analysis

Although sentencing counsel had personally prosecuted defendant in

defendant’s original criminal case, counsel was not involved as a

prosecutor in the violation of probation (VOP) case in which defendant

was found to have violated defendant’s probation, and the VOP case was

not the same “matter” as the original criminal case for purposes of Law.

Prof. Conduct R. 1.11(e), as the VOP case involved defendant’s subsequent

conduct; even assuming that the VOP proceeding involved the same matter,

defendant failed to show actual prejudice as defendant admitted that

counsel vigorously represented defendant

ound to have violated defendant’s probation, and the VOP case was

not the same “matter” as the original criminal case for purposes of Law.

Prof. Conduct R. 1.11(e), as the VOP case involved defendant’s subsequent

conduct; even assuming that the VOP proceeding involved the same matter,

defendant failed to show actual prejudice as defendant admitted that

counsel vigorously represented defendant. Hitchens v. State, 931 A.2d 437

(Del. 2007).

Screening.

An appropriate screening mechanism, in the proper circumstances, may

rebut the presumption of shared confidences that arises under Rule 1.10 in

cases where the disqualified attorney’s conflict of interest originated in

private practice. Nemours Found. v. Gilbane, Aetna, Fed. Ins. Co., 632 F.

Supp. 418 (D. Del. 1986), disapproved, Atasi Corp. v. Seagate Technology,

847 F.2d 826 (Fed. Cir. 1988).

The screening procedure relating to lawyers in conflict of interest areas

should be referred to figuratively as a “cone of silence” rather than a

“Chinese wall”; the conical image more appropriately describes the

responsibility of the individual attorney to guard the secrets of his former

client. He is commanded by the ethical rules to seal, or encase, these

particular confidences within his own conscience. The latter term is

suggestive of attempts in the context of a large law firm to physically

cordon off attorneys possessing information from the other members of

the firm who represent clients whose interests are adverse to interests of

these attorneys’ former clients. Nemours Found. v. Gilbane, Aetna, Fed.

Ins. Co., 632 F. Supp. 418 (D. Del. 1986), disapproved, Atasi Corp. v.

Seagate Technology, 847 F.2d 826 (Fed. Cir. 1988).

Del. Rules of Prof'l Conduct Rule 1.12

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