Moving Up: But With Caution
An opportunity suddenly appears: You’re a solo practitioner or in a small firm. You have the chance to join a larger firm — where the prospects appear brighter — or a chance to join another firm that better fits your practice. Before you leap, however, consider the ethical constraints that could haunt you and your future firm.
The Rules of Professional Conduct, specifically rule 1.9 and rule 1.10, govern not only obligations to a former client, but also the imputation of any disabling conflict now to every lawyer in that lawyer’s firm — including conflicts only the lawyer herself or himself might have had before joining a new firm.
Rule 1.9 is straightforward. A lawyer cannot represent a client in a subsequent matter that is the same or is substantially related to a matter in which the client’s interests are materially adverse to the interests of a former client the lawyer represented — unless the former client gives its informed written consent. [Rule 1.9(a).] In addition, a lawyer cannot represent a client in the same or a substantially related matter in which the lawyer’s former firm had previously represented a client whose interests are materially adverse to that client and about whom the lawyer acquired confidential information that Business and Professions Code section 6068(e)(1) and rule 1.6 (Confidentiality) protects — unless the former client gives its informed written consent. [Rule 1.9(b)(1) & (2).]
Finally, a lawyer who has formerly represented a client — or whose present or prior firm has formerly represented a client — shall not thereafter use information that section 6068(e)(1) and rule 1.6 protects and that the lawyer acquired by virtue of the representation of the former client, to the former client’s disadvantage, except as the rules or the State Bar Act would permit with respect to a current client, or if the information has become generally known, or reveal any such protected information acquired by virtue of the representation of the former client, again except as the rules or the Act would permit with respect to a current client.[1] [Rule 1.9(c)(1) &(2).]
Thus, rule 1.9 gives a former client the right to give, and the lawyer the obligation to obtain, informed written consent before the lawyer may represent a new client with interests materially adverse to that former client. In addition, the rule protects a former client’s confidential information just as section 6068(e)(1) and rule 1.6 protect the confidential information of a current client.
Another consideration is the application of rule 1.9 to the other lawyers in a firm. Rule 1.10 provides that, when lawyers practice in a firm, no lawyer shall represent a client when rule 1.7 (current client conflicts) or rule 1.9 (conflicts with former clients) would prohibit any one of them, practicing alone, from representing that client. In short, if one lawyer has a conflict because of a current client representation or a former client representation, then every lawyer in the firm has a conflict.
Rule 1.10 has an important, but limited, exception that applies to a lawyer who has joined a new firm. If the conflict prohibition arises out of that lawyer’s association with a former firm and that lawyer did not substantially participate in the same or a substantially related matter; and that lawyer is timely screened from any participation in the conflicting matter and apportioned no part of the fee from the conflicting matter; and the firm promptly gives written notice to any affected former client —including a description of the screening procedure put in place so that the former client can determine if the firm has complied with the rule — then that lawyer’s conflict is not imputed to every other lawyer in the firm.
What might timely screening involve? Establishing the ethical screen before the conflicted lawyer joins the new firm; the physical separation of the conflicted lawyer from any information related to the conflicted matter, whether in digital or paper form, and physical separation from personnel working on it (lawyers, paralegals, staff); restricting the conflicted lawyer’s access to any related digital files and labeling paper files; advising all firm personnel of the ethical screen with the caveat of negative employment consequences for any violation; and periodic monitoring of the screening procedures.
Are these steps a guarantee that a former client will not object? No. But absent such procedures, a future disqualification motion in the ongoing matter, or any new matter, becomes more likely, and both costly and embarrassing for you and your new firm. Good wishes for your move!
[1] Section 6068(e)(2) and rule 1.6 permit the disclosure of protected confidential information in very narrow circumstances: only if a lawyer reasonably believes disclosure is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in the death of, or substantial bodily harm to, an individual. In effect, the “murder/mayhem” exception to confidentiality.