The day after President Trump nominated attorney Eugene Scalia as the next secretary of the U.S. Department of Labor, the gossip among securities industry lobbyists centered on one question: Will Scalia recuse himself from fiduciary matters?

Given Scalia’s involvement in defeating the DOL’s controversial fiduciary rule in 2018, the question has legs. He was the lead attorney in the successful case against the DOL’s fiduciary rule before the U.S. Court of Appeals for the 5th Circuit, which vacated the rule.

Many believe he has little choice and will do so. “There’s a lot of discussion about Scalia recusing himself,” a prominent securities trade group analyst said anonymously.

The son of deceased Supreme Court Justice Antonin Scalia, Scalia represented nine plaintiffs, including the Financial Services Institute (FSI), the Securities Industry and Financial Markets Association and the U.S. Chamber of Commerce in the case against the DOL’s fiduciary rule.

He is a partner in the Washington, D.C., office of Gibson, Dunn & Crutcher.

Previously, Scalia served as the top legal officer at the Department of Labor during the George W. Bush administration and before that was a special assistant to Attorney General William Barr during his first stint as the top law enforcement officer in the George H.W. Bush administration.

The DOL is currently working to reissue a fiduciary rule that would govern the conduct of advisors who work with retirement plan rollovers.

“There are rumors that proposed revisions to the fiduciary regulation will be issued before the end of the year, and possibly before Scalia is confirmed as the secretary of labor. So he may not be involved directly in the process of developing the proposal,” Fred Reish, a partner and chair of the Fiduciary Services ERISA team in the L.A. office of law firm Drinker Biddle & Reath.

“If the confirmation process moves more quickly, and the development of the proposal is delayed, then of course Scalia could, at least in theory, be involved. In that case, there would be ethical issues,” Reish said.

“For example, some people are saying that he should be required to recuse himself under the law. That may be a close question. But I think it is clear that it appears to be a conflict of interest, and for appearances purposes at least, he should recuse himself."

Consumers groups who advocate for fiduciary protections for investors have concerns about whether Scalia will be able to put investors first after a lifetime of representing corporate clients and the securities industry.

Barbara Roper, director of investor protection at the Consumer Federation of America, said, “Everyone seems to agree that Mr. Scalia is a smart and talented attorney. But he’s spent his career as the go-to lawyer for the Chamber of Commerce and Wall Street, attacking regulations designed to protect workers and retirees.

“The question is whether he will now shift gears and work to protect the interests working Americans and retirees or use his new position to continue to look out for his corporate clients,” Roper said.

Dale Brown, president & CEO of FSI, which Scalia represented in their case against the DOL’s fiduciary rule, said he supports President Trump’s selection of Scalia to lead the DOL.

“Eugene Scalia is well qualified and, if confirmed, would be an outstanding secretary of labor," he said "Scalia will bring an investor-focused, measured approach, including recognizing the potential for unintended consequences of rulemaking."

Scalia will face a confirmation hearing before the Senate Health, Education, Labor and Pensions Committee sometime after lawmakers in the upper chamber return to Washington following the summer recess. The committee will need to vote on approving him before his nomination reaches the Senate floor for a full vote.

His appointment has triggered opposition from labor unions because of his work representing corporations and the U.S. Chamber of Commerce in labor fights. Many Democrats are also likely to oppose his nomination, though the Republican majority in the Senate means his confirmation is likely, barring a tremendous controversy surfacing ring the process.

The White House on Tuesday described Scalia as "a renowned labor, employment, and regulatory lawyer," and pointed to his extensive private and federal government experience.