1-6
7-12
13-18
19-24
25-30
31-36
37-42
43-48
49-54
55-60
61-66
67-72
73-78
79-84
85-90
91-96
97-102
103-108
109-114
115-120
121-126
127-132
133-138
139
1-6
7-12
13-18
19-24
25-30
31-36
37-42
43-48
49-54
55-60
61-66
67-72
73-78
79-84
85-90
91-96
97-102
103-108
109-114
115-120
121-126
127-132
133-138
139
approach to bargaining in settlement discussions or negotiating business points in a transaction,
willingness or unwillingness to be deposed by an adversary, and financial ability to withstand
extended litigation or contract negotiations. Only when such information will be directly in issue or
of unusual value in the subsequent matter will it be independently relevant in assessing a substantial
relationship.
[11]When lawyers have been associated within a firm but then end their association, the
question of whether a lawyer should undertake representation is more complicated. There are
several competing considerations. First, the client previously represented by the former firm must
be reasonably assured that the principle of loyalty to the client is not compromised. Second, the rule
should not be so broadly cast as to preclude other persons from having reasonable choice of legal
counsel. Third, the rule should not unreasonably hamper lawyers from forming new associations
and taking on new clients after having left a previous association. In this connection, it should be
recognized that today many lawyers practice in firms, that many lawyers to some degree limit their
practice to one field or another, and that many move from one association to another several times in
their careers. If the concept of imputation were applied with unqualified rigor, the result would be
radical curtailment of the opportunity of lawyers to move from one practice setting to another and of
the opportunity of clients to change counsel.
[12]Paragraph (b) operates to disqualify the lawyer only when the lawyer involved has
actual knowledge of information protected by Rules 1.6 and 1.9(c). Thus, if a lawyer while with
one firm acquired no knowledge or information relating to a particular client of the firm, and that
lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified
from representing another client in the same or a related matter even though the interests of the two
clients conflict. See Rule 1.10(b) for the restrictions on a firm once a lawyer has terminated
association with the firm.
[13] Application of paragraph (b) depends on a situation’s particular facts, aided by
inferences, deductions or working presumptions that reasonably may be made about the way in
which lawyers work together. A lawyer may have general access to files of all clients of a law firm
and may regularly participate in discussions of their affairs; it should be inferred that such a lawyer
in fact is privy to all information about all the firms's clients. In contrast, another lawyer may have
access to the files of only a limited number of client and participate in discussions of the affairs of
no other clients; in the absence of information to the contrary, it should be inferred that such a
lawyer in fact is privy to information about the clients actually served but not those of other clients.
[14] Independent of the question of disqualification of a firm, a lawyer changing
professional association has a continuing duty to preserve confidentiality of information about a
client formerly represented. See Rules 1.6 and 1.9(c).
[15]Except in situations governed by Rule 1.11, Rule 1.9 applies in all circumstances in
which a lawyer has previously represented a client as an advocate, advisor, intermediary, or author of
a legal opinion to be rendered on behalf of a client for use by a third person. Except as provided in
Rule 2.4,Rule 1.9 does not apply to parties being served by a lawyer as a dispute resolution
neutral. If, however, the lawyer's service as a neutral will be materially adverse to a former client and
client the protections of Rule 1.9
See Rule 1.0(b)
“Consultation”See Rule 1.0(c)
“Firm”See Rule 1.0(d)
“Knowingly” and Known”See Rule 1.0(f)
“Material”and “Materially” See Rule 1.0(g)
“Substantially”See Rule 1.0(l)
PROPOSED RULE 1.10
IMPUTED DISQUALIFICATION: GENERAL RULE
knowingly represent a client when any one of them practicing alone would be prohibited from
doing so by Rules 1.7, 1.8(c), 1.9(a), 1.9(b), or 2.2.
thereafter representing a person with interests materially adverse to those of a client represented by
the formerly associated lawyer and not currently represented by the firm, unless:
lawyer represented the client; and
that is material to the matter.
of a law firm with which the lawyer was formerly associated, other lawyers currently associated in a
firm with the personally disqualified lawyer may nonetheless represent the person if both the
personally disqualified lawyer and the lawyers who will represent the person on behalf of the firm
act reasonably to:
the representation of the current client; and
from the personally disqualified lawyer that is material to the current matter and is
protected by Rule 1.9(c); and
(3) promptly implement screening procedures to effectively prevent the flow of
information about the matter between the personally disqualified lawyer and the other
lawyers in the firm; and
implementation of the screening procedures required by this rule and the actions
which have been taken to comply with this Rule.
under the conditions stated in Rule 1.7.
[1] For purposes of the Rules of Professional Conduct, the term "firm" includes lawyers in
a private firm, and lawyers in the legal department of a corporation or other organization, or in a
legal services organization. See Rule 1.0(d) (defining “Firm” or “Law Firm”). Whether two or
more lawyers constitute a firm within this definition can depend on the specific facts. For example,
two practitioners who share office space and occasionally consult or assist each other ordinarily
would not be regarded as constituting a firm. However, if they present themselves to the public in a
firm for the purposes of the Rules. The terms of any formal agreement between associated lawyers
are relevant in determining whether they are a firm, as is the fact that they have mutual access to
information concerning the clients they serve. Furthermore, it is relevant in doubtful cases to
consider the underlying purpose of the Rule that is involved. A group of lawyers could be regarded
as a firm for purposes of the rule that the same lawyer should not represent opposing parties in
litigation, while it might not be so regarded for purposes of the rule that information acquired by
one lawyer is attributed to the other.
[2] With respect to the law department of an organization, there is ordinarily no question
that the members of the department constitute a firm within the meaning of the Rules of
Professional Conduct. However, there can be uncertainty as to the identity of the client. For
example, it may not be clear whether the law department of a corporation represents a subsidiary or
an affiliated corporation, as well as the corporation by which the members of the department are
directly employed. A similar question can arise concerning an unincorporated association and its
local affiliates.
[3] Similar questions can also arise with respect to lawyers in legal aid. Lawyers employed
in the same unit of a legal service organization constitute a firm, but not necessarily those employed
in separate units. As in the case of independent practitioners, whether the lawyers should be treated
as associated with each other can depend on the particular rule that is involved, and on the specific
facts of the situation.
[4] The rule of imputed disqualification stated in paragraph (a) recognizes the community of
interest and shared loyalty presumed to exist among lawyers who are associated in law firm.
Paragraph (a) operates only among the lawyers currently associated in a firm. When a lawyer
moves from one firm to another, the situation is governed by paragraphs (b) and (c).
[5] When a lawyer who is associated in a firm leaves the firm, the question of whether a
lawyer should undertake representation adverse to clients of the former firm is more complicated.
There are several competing considerations. First, the client previously represented by the former
firm must be reasonably assured that the principle of loyalty to the client is not compromised and
that confidential information related to the representation will not be used to the client’s
disadvantage. Second, the rule should not be cast so broadly as to preclude other persons from
having reasonable choice of legal counsel. Third, the rule should not unreasonably hamper lawyers
from forming new associations and taking on new clients after having left a previous association. In
this connection, it should be recognized that today many lawyers practice in firms, that many
lawyers to some degree limit their practice to one field or another, and that many move from one
association to another several times in their careers. If the concept of imputation were applied with
unqualified rigor, the result would be radical curtailment of the opportunity of lawyers to move from
one practice setting to another and of the opportunity of clients to change counsel.
[6] Paragraphs (a) and (b) govern the vicarious disqualification of a law firm in the situation
in which a lawyer leaves the firm and continues or undertakes the representation of a client
previously represented by the firm, the firm is no longer representing the client and lawyers who
have remained in the firm are asked to undertake a representation materially adverse to the firm’s
former client. If the new matter is substantially related to a matter in which the firm previously
(a) from undertaking the representation if any lawyer remaining in the firm would be precluded by
Rule 1.9(a) from doing so because the lawyer had participated in the client’s prior representation.
Alternatively, paragraph (b) precludes the firm from undertaking the representation if any lawyer
remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the
matter. If, on the other hand, no remaining lawyer participated in the client’s representation or
possessed confidential information, the firm is permitted to undertake the representation even
though it is materially adverse to the former client in a substantially related matter.
[7] Paragraph (c) addresses the situation in which a lawyer leaves one law firm and joins
another firm which is representing a client with interests materially adverse to a client of the new
lawyer’s former firm. The new lawyer may be personally disqualified from participating in the
representation of some of the new firm’s clients because of his prior representation of or
acquisition of confidential information about clients of his or her former law firm. This personal
disqualification will not be imputed to other lawyers in the personally disqualified lawyer’s new
firm if they act reasonably to protect the confidentiality interests of the person being represented by
the personally disqualified lawyer’s former firm.
[8] Paragraph (c) sets forth the measures that must be taken in order protect the
confidentiality interests of the client being represented by the personally disqualified lawyer’s
former firm. Whether a firm’s screening procedures are effective to prevent the flow of information
about the matter between the personally disqualified lawyer and the other lawyers in the firm is a
question of fact. Factors to be considered include: a written affirmation by the personally
disqualified lawyer and the lawyers and firm personnel handling the matter in question that they are
aware of and will abide by the screening procedures implemented by the firm, the structural
organization of the law firm or office, the likelihood of contact between the personally disqualified
lawyer and the lawyers handling the matter in question, and the existence of firm rules and a filing
system which prevents unauthorized access to files with respect to the matter in question. Although
this Rule does not require that the personally disqualified lawyer be prohibited from sharing in any
fee generated by the representation in question, such a prohibition can be considered in determining
the effectiveness of the screening procedures employed by the firm. The question to be asked in
each case is whether the screening mechanism effectively reduces to an acceptable level the potential
for misuse of information related to the representation of the personally disqualified lawyer’s
former client.
[9] Where a lawyer has joined a private firm after having represented the government, the
situation is governed by Rule 1.11(a) and (b). Where a lawyer represents the government after
having served private clients, the situation is governed by Rule 1.11(c)(1). The individual lawyer
involved is bound by the Rules generally, including Rules 1.6, 1.7 and 1.9(c).
“Material” and “Materially”See Rule 1.0(g)
“Reasonably”See Rule 1.0(i)
“Substantially”See Rule 1.0(l)
PROPOSED RULE 1.11
SUCCESSIVE GOVERNMENT AND PRIVATE EMPLOYMENT
connection with a matter in which the lawyer participated personally and substantially as a public
officer or employee, unless the appropriate government agency consents in writing after
consultation. No lawyer in a firm with which that lawyer is associated may knowingly undertake or
continue representation in such a matter unless both the personally disqualified lawyer and the
lawyers who are representing the client in the matter act reasonably to:
the representation of the current client; and
confidential government information relating to the matter; and
(3) promptly implement screening procedures to effectively prevent the flow of
information about the matter between the personally disqualified lawyer and other
lawyers in the firm; and
(4) advise the government agency in writing of the circumstances which warranted the
haveutilization of the screening procedures required by this rule and the actions which
been taken to comply with this rule.
knows is confidential government information about a person the lawyer acquired when the lawyer
was a public officer or employee, may not represent a private client whose interests are adverse to
that person in a matter in which the information could be used to the material disadvantage of that
person. A firm with which that lawyer is associated may undertake or continue representation in the
matter only if both the personally disqualified lawyer and the lawyers who are representing the
client in the matter comply with the requirements set forth in paragraph (a).
shall not:
in private practice or nongovernmental employment, unless under applicable law no one is,
or by lawful delegation may be, authorized to act in the lawyer's stead in the matter; or
lawyer for a party in a matter in which the lawyer is participating personally and
substantially, except that a lawyer serving as a law clerk to a judge, other
adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule
1.12(b) and subject to the conditions stated in Rule 1.12(b).
determination, contract, claim, controversy, investigation, charge, accusation, arrest or
other particular matter involving a specific party or parties; and