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How substantial is substantial? Conflicts of interest and government attorneys
The Model Rules of Professional Conduct provide that “a lawyer who has formerly served as a public officer or employee of the government . . . shall not . . . 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.”1 Similarly, the Rules provide that a current government lawyer may not participate in a matter in which he or she “participated personally and substantially while in private practice,” absent a written consent.2 Illinois decisions interpreting what level of involvement is “substantial” are not numerous, but suggest that even minimal efforts on behalf of a client may later prove disqualifying.
In Wagner v. Lehman Brothers Kuhn Loeb Inc., the Northern District of Illinois determined that an attorney’s participation in two case reviews as an Assistant Regional Administrator at the SEC necessitated his disqualification as counsel for plaintiff in a subsequent class action raising similar claims against the previously-investigated entity.3 The court applied the predecessor rules to the Model Rules of Professional Conduct, the Model Code of Professional Responsibility, which similarly prohibited government attorneys from subsequently taking private employment regarding matters in which they had “substantial responsibility.”4 The court noted that an ABA opinion interpreting the rules envisioned “substantial responsibility” as involving a “much closer and more direct relationship than that of a mere perfunctory approval or disapproval of the matter in question. It contemplates a responsibility requiring the official to become personally involved to an important, material degree, in the investigative or deliberative processes regarding the transactions or facts in question.”5 That opinion went on, however, to state that “it is not necessary that the public employee or official shall have personally and in a substantial manner investigated or passed upon the particular matter, for it is sufficient that he had such a heavy responsibility for the matter in question that it is unlikely he did not become personally and substantially involved in the investigative or deliberative processes regarding that matter.”6 In light of counsel’s important supervisory role in his former position at the SEC, the court concluded that this standard was met and disqualification was required to protect the integrity of that agency.7
Other Illinois cases have followed similar logic. In Kadish v. Commodities Future Trading Corp., for example, the Northern District concluded that disqualification was required where an attorney representing parties in a Commodities Future Trading Commission (CFTC) enforcement action had previously worked on a draft complaint related to the investigation that spawned that action while working for the CFTC.8 This was so even though the attorney’s work had been limited to cutting and pasting legal boilerplate from other complaints and he had not reviewed any of the actual facts relating to the specific investigation.9 Similarly, in In re M.B., the Illinois Appellate Court, Third District, found that disqualification was required where an attorney for the Department of Children and Family Services in a juvenile proceeding had previously appeared as an Assistant State’s Attorney in the same matter.10 The court concluded that no factual findings about whether the attorney actually learned anything about the case or performed any work on it were required; the fact that she had responsibility for all juvenile cases prosecuted during the time she was at the State’s Attorney’s office was sufficient.11
Cases where Illinois courts have found no substantial involvement, meanwhile, appear to have largely been cases where there was really no prior involvement by the attorney at all. For example, in Illinois Wood Energy Partners, L.P. v. County of Cook, the Illinois Appellate Court, First District, rejected an argument that disqualification was necessary because an attorney for the plaintiffs had been on the Zoning Board of Appeals at the time the permit request at issue was denied.12 The court reasoned that the record did not show the attorney participating in the consideration of the permit, but rather abstaining from any related discussion.13 Similarly, the Northern District of Illinois in Park-N-Shop, Ltd. v. City of Highwood rejected an argument that counsel should be disqualified because he had served on the city council at the time the liquor commissioner granted the plaintiff the license at issue in the dispute.14 The court emphasized that defendant had not shown that the city council, much less counsel personally, ever debated or discussed the granting of plaintiff’s license or even the policies applicable to it.15 In light of the complete lack of connection between the attorney and the prior government involvement in the case, these cases found that disqualification was unwarranted.
Thus, government attorneys who do not have even nominal involvement in a matter handled by their office or agency need not fear future disqualification. The threshold for “substantial” involvement allowing such disqualification is not high, however, and non-substantive work not implicating confidential information may suffice.