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If you are a government attorney looking to move to private practice, ethics are a crucial consideration during the job search process. But ethics issues can be confusing unless you understand the moving pieces at play. The goal is to minimize the likelihood of needing to recuse yourself from a matter. These are some of the common questions and issues government attorneys encounter once they begin considering a move to a law firm:

• When do my disclosure/recusal obligations get triggered?
• What are the different ways of reaching out to a firm, such as single-blind inquiries, double-blind inquiries and full submissions? How do these impact potential disclosure/recusal obligations?
• Is there a difference if I approach a law firm directly versus through a recruiter?
• What if a law firm I wish to approach has an active matter in front of my agency, but not me?
• What if a law firm I wish to approach has an active matter on front of me? Do I have to recuse myself before approaching them?
• What happens if I recuse myself from an active matter involving a law firm, then apply to the law firm, but they pass on my candidacy? Is the recusal temporary or am I permanently recused from that matter, even if we didn’t engage in discussions? And would it change my duties if we had discussions, but they subsequently passed on my candidacy?
• What happens if a law firm reaches out to me? Can I engage in discussions or must I first recuse myself?

As you can see, this can get complicated quickly. As a rule of thumb: If you are not involved in a matter involving the targeted law firm, your likelihood of having to recuse yourself is much lower. But the closer your involvement on a matter involving the targeted firm, or the higher your level of leadership within your agency, the higher the chances of needing to recuse yourself from a relevant matter should you wish to proceed with interviewing at the firm. Sometimes just knowing the firm is interested in you can trigger ethical obligations. I will address these various scenarios and approaches below.

Before anything else, speak to your agency’s ethics official. This is a must. While the U.S. Code and Code of Federal Regulations have sections addressing seeking employment outside of the government (see, e.g., 18 U.S.C. Sec. 208 and 5 C.F.R. Sec. 2635.601, Subpart F), you should still speak to your ethics official. I have seen considerable differences in how certain agencies interpret and apply what can and cannot be permitted before requiring a recusal. Furthermore, ethics officials will keep your consideration of a move confidential, so you should view the ethics official as a necessary resource who can and should be trusted. Many or all of the above questions can be addressed by your agency’s ethics official.

If you are using a recruiter, it’s important to understand the various ways you can be presented to a law firm. These are divided into two main categories (blind inquiries and submissions), and each category has two subsections, as laid out below.

Blind Inquiries

A blind inquiry is usually when a recruiter presents a description of your background but your identity remains anonymous. A blind inquiry can have several functions, including protecting your confidentiality and also avoiding invoking ethical issues by keeping the information anonymous. A blind inquiry can also keep the name of the law firm anonymous from you, if this is required to avoid ethical flags.

In a single-blind inquiry, one side knows of the other, but not both. In the most common situation, you will know which law firm the recruiter is contacting on your behalf, but the law firm will only receive a general description of your background with your identity remaining anonymous. (The law firm is blind.) Once a law firm expresses interest and your recruiter informs you, this could potentially trigger ethical disclosure/recusal obligations, depending on the circumstances and your involvement with the firm on a particular matter.

A double-blind inquiry is the most conservative approach. In this situation, the recruiter drafts a description of your background (without sharing your name/identifying information) and reaches out to firms that match your criteria but does not tell you which firms are being contacted. (The law firm is blind and so are you.) Once a law firm expresses interest and your recruiter informs you, this could potentially trigger ethical disclosure/recusal obligations, depending on the circumstances and your involvement with the firm on a particular matter.

The benefit of blind inquiries is that they allow the law firm to make an initial determination if they are interested in learning more, while completely protecting your identity and confidentiality. A downside is that law firms tend to not take blind inquiries as seriously, and they are more likely to be overlooked as compared to a full submission.

Submissions

A submission is when the recruiter goes beyond an inquiry and shares your name/identity with the law firm. This can take the form of an informal recruiter call to the relevant individual at a law firm to share your name and gauge the level of interest (sometimes a name is all the firm will need to make a decision), or your background can be communicated with your resume and a more detailed write-up including your specific interest in private practice, prior experience that may be especially relevant, and other important information that is of interest to the individuals reviewing your candidacy. There are two types of submissions: single-blind submissions and full submissions.

In a single-blind submission, the recruiter presents your information (including your identity) but you do not know which law firms are being contacted on your behalf. This is done to shield your knowledge so that your introduction (through the recruiter) to the firm does not trigger potential recusal issues. (The theory is that if you are knowingly approaching a firm and interested in joining, and the firm also knows your identity, you are more likely to have a conflict of interest, so what you don’t know can’t compromise your ethical duties.) Once a law firm expresses interest and your recruiter informs you, this could trigger ethical disclosure/recusal obligations, depending on the circumstances and your involvement with the law firm on a particular matter.

In a full submission, the recruiter presents your information (including your identity) and you are aware of the firm to which your information is being shared. Both you and the law firm are aware of the other. Again, once a law firm expresses interest and your recruiter informs you, this could trigger ethical disclosure/recusal obligations, depending on the circumstances.

Using Recruiters (or Not)

Now that you understand the various manners in which you can be presented to a firm, you may be wondering if you need to use a recruiter. You absolutely do not have to use a recruiter. But as explained above, the recruiter’s role as a third party can provide the important anonymity buffer between you and a firm through the use of blind inquiries. This is not something you can do on your own, for obvious reasons. However, if remaining anonymous is not a consideration, it is your choice whether to use a recruiter or approach a firm directly. Also, it’s not uncommon for firms to approach government attorneys directly (often in a gentle fashion that suggests, “If you ever decide to look, let us know”).

Talking to Your Ethics Official

Now that you understand the various ways in which a firm can be approached, below is a list of questions to help guide your discussion with your ethics official. To that end, this list is intended for you to bring to your discussion with the ethics official. Some of the answers may be already laid out in an agency handbook, but some topics may require discussion due to the nuanced nature of your position or specific matters. This list provides a range of questions to ask.

• At what point does the trigger for a recusal occur?
• How do the recusal obligations differ depending on the circumstances?
• What are the various ways I can be presented to a firm, including blind inquiries and/or full submissions, to minimize the need for a recusal?
• Which of these approaches does the agency recommend in order to preserve my confidentiality as long as possible?
• In what circumstances are submissions acceptable without raising recusal obligations? What are my obligations around submissions, both single-blind submissions and full submissions?
• What is the difference if I approach a law firm directly versus through a recruiter? How important is the intermediary/buffer?
• What if a law firm I wish to approach (either myself or through a recruiter) has an active matter in front of my agency, but not me?
• Given my position in the Agency, if I am not involved in a particular matter involving the firm, am I able to approach the firm without having to recuse myself? Is there a trigger at which I must disclose/recuse myself, or is my lack of involvement enough to avoid needing a disclosure/recusal at any point?
• If a firm has an active matter in front of me, is a single-blind inquiry permitted or would that trigger a disclosure/recusal? Is a double-blind inquiry permitted or would that trigger a disclosure/recusal?
• If I told my recruiter the types of firms I would be interested in, and he/she sent a double blind inquiry to a firm that has a matter in front of the Agency, and the firm expresses interest in learning more about me, and my recruiter informs me of the firm, what are my obligations at that time? Do I have to recuse myself just because I know the firm is interested in me, even if they don’t know who I am? Or is the duty to recuse myself only triggered if I intend to proceed with the process and the firm will learn my identity?
• What happens if I recuse myself from an active matter involving a law firm, then apply to the law firm, but they pass on my candidacy without ever engaging in discussions? Is the recusal temporary or am I permanently recused from that matter, even if we didn’t engage in discussions? And would it change my ethical duties if we had discussions, but they subsequently passed on my candidacy?
• What happens if a law firm reaches out to me and I am working on an active matter involving them? Does this interaction, even if I politely decline, create any ethical duty to disclose?
• Are there any questions I haven’t asked but should know about during this process?

All of this may seem a bit daunting. But once you understand the scope of what’s permissible without needing to disclose/recuse, it will become much clearer. It’s my hope that this tool will help provide the necessary clarity so you can approach the law firm market in the most thorough manner without inadvertently running afoul of your ethical duties or inadvertently invoking recusal obligations too soon.

Dan Binstock is a partner at Garrison & Sisson, an attorney search firm in Washington, D.C. He serves as president of the National Association of Legal Search Consultants. The views reflected in this article are his own.