[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

The Bounds of the Law
Federal Regulation In addition to the applicable Rules of Professional Conduct, state and
federal conflict of interest statutes regulate government lawyers during and after their
government service. Officers and employees of the executive branch are subject to
provisions concerning financial conflicts of interest. 38 Specific conflict of interest rules also
apply to lawyers who serve as trustees in bankruptcy courts. 39 Several agencies add
additional requirements that govern who can practice before that agency. 40 Some lawyers,
such as special prosecutors, also are subject to particular agency regulations. 41 Former
government employees are governed by the Ethics in Government Act, which contains
several restrictions that are stricter than those found in the rules of professional conduct. 42
Violations of all of these provisions are felonies, punishable with fines and imprisonment
for up to five years. 43 Courts have used the elements of these statutes as the basis for
granting disqualification motions. 44 State disciplinary agencies also have relied on these
provisions in cases of professional discipline. 45 Most relevant is 18 U.S.C. § 207, which
contains three provisions that stringently regulate the conduct of former government
lawyers. The consent of the agency is not a defense under this statute (as it would be in
Model Rule 1.11).
State Provisions Like federal lawyers, state and local lawyers are subject to both these ethics
statutes and the relevant rules of professional conduct. 46 State provisions generally parallel
those in the federal law and Model Rule 1.11. For example, many include bans on
appearances or representation before the lawyer’s former agency for a period of time. 47
Many states also bar representation in matters in which the former government lawyer
participated personally and substantially. 48 A few jurisdictions regulate additional matters
as well, such as prohibiting former government lawyers from accepting employment with
entities that are subject to regulation by their former agency employer or with those that do
business with the state. State law also parallels federal law in targeting former employees of
particular agencies or commissions. 49 Despite these similarities, each state has enacted its
own special mix of prohibitions, often in response to a particular political embarrassment. 50
Conclusion
All of this legal regulation demands careful attention, especially to several details that many
of these rules share. First, each rule makes the role of the government employee relevant to
its reach. Second, many of these rules also define the lawyer’s role after leaving government
service. Finally, each rule creates a specific penalty. Some create criminal penalties; others
create administrative remedies, such as loss of a government contract or benefit. 51 Federal
and state governments have found these additional remedies necessary to curb specific
abuses of the public trust. Courts also have used these provisions as a guide to other relief,
such as disqualification. Wise government lawyers need to remain aware of both governing
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