In Washington, leap years occur twice every four years, not once. The first occurs on the calendar and the second occurs in the job market. Whether the president and administration have been newly elected or are beginning a second term, lawyers who have held government positions may look to work fewer hours and make more money by transitioning to the private sector. Now that the second leap year is upon us, Zuckerman Spaeder LLP’s Legal Profession and Ethics Practice recommends that law firms hiring government lawyers be mindful of the attendant legal and ethical restrictions.
In addition to the ethics issues firms need to keep in mind during negotiations with a prospective hire from government, there are also regulations governing the type of work former government lawyers can perform after entering private practice. These lawyers may also face admissions issues as private practitioners in a new jurisdiction. Following are a few key recommendations for navigating the steps of this process:
- Hiring issues: Under 18 U.S.C § 208 and 5 C.F.R. § 2635.601 et seq., federal employees must disqualify themselves from participating in matters that affect private entities with whom the employee is negotiating for possible employment. A federal employee can be deemed to be “negotiating” with a prospective employer even if the only contact is through an intermediary. A “negotiation” remains alive unless the prospective employer rejects the applicant and terminates discussions or a minimum of two months pass without further interest on behalf of the employer. Waivers of these restrictions can be obtained. In addition, ABA Model Rule of Professional Conduct 1.11(d)(ii)—which has been adopted by many jurisdictions, although not the District of Columbia—contains a similar provision prohibiting employment negotiations by government employees licensed to practice law with prospective employers with matters in which the government employee has an active role. While these rules do not directly regulate the conduct of the employer, starting an employment relationship with accusations of improper influence is not good for either the employee or employer.
- Restrictions on post-hiring work: Under 18 U.S.C.§ 207 and 5 C.F.R. Part 2641, the ex-federal employee, whether working as a lawyer or not, is restricted from communicating with or appearing before their former department or agency and prohibited from providing “behind-the-scenes” advice. Depending upon the type of position and their role in the particular matter, the time period of the prohibition ranges from a year to a permanent ban, although the latter applies only to specific matters in which the employee participated actively. The ban can be, but rarely is, waived. Upon leaving government, the employee should receive a debriefing and packet from the agency ethics officer, detailing at least some of the restrictions that apply. The ethics rules have parallel prohibitions under ABA Model Rule 1.11 and the various state adoptions of that rule. The key distinctions between the ethics rules and the federal regulations are that the former prohibit any work, even a behind-the-scenes role, relating to a matter in which the former government employee had an active role and as to that matter the prohibition is permanent. D.C. Rule 1.11, applicable in many instances, further does not provide for a waiver even if the affected agency consents.
- Admissions issues: Lawyers admitted in other jurisdictions can practice law for the federal government (or for the District of Columbia government) without being licensed in the District of Columbia. Once such lawyers go into private practice, however, they promptly (within 90 days) need to seek admission to the District of Columbia Bar and, until so admitted, must notify clients that they are not admitted to practice in the jurisdiction. In addition, they are required to include disclaimers on their website biographies, email signatures, and letterhead. Lawyers whose practices are restricted entirely to federal courts or federal agencies such the U.S. Citizenship and Immigration Services (USCIS) or the U.S. Patent and Trademark Office (USPTO) may not be required to seek admission to the District of Columbia Bar, but must disclose to clients and the public the limitations of their practice.
The above are general principles only, and each matter may have its own unique features.