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
139-144
145-150
151-156
157-162
163-168
169-174
175-180
181-186
187-192
193-198
199-204
205-210
211-216
217-222
223-228
229
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)
Paragraph (a): There is no counterpart to paragraph (a) in the Disciplinary Rules, but it is
consistent with the holdings in Tennessee Formal Ethics Opinions 81-F-5, 81-F-9, 84-F-65, and
86-F-104.
Paragraph (b): There is no counterpart to paragraph (b) in the Disciplinary Rules, but it is
consistent with Tennessee Formal Ethics Opinion 89-F-118 which permits a lawyer to rebut a
presumption that the lawyer had acquired confidential information about a client of a law firm with
which the lawyer had formerly been associated.
Paragraph (c): The Disciplinary Rules do not specify the duration of the lawyers’ duties to
preserve client confidentiality and to refrain from using confidential information to the disadvantage
of a client.
Rule 1.9 is substantively identical to ABA Model Rule 1.9, except for the requirement in
Paragraphs (a) and (b) that the client give written consent to waive a conflict of interest. The
Comment, however, has been significantly modified to provide more guidance to lawyers when they
are determining whether two matters are substantively related within the meaning of Paragraphs (a)
and (b).
The Preliminary Draft was revised so that the Rule would more closely conform to the
Model Rule. The Comments were revised to provide additional guidance for lawyers when they are
determining whether two matters are substantially related within the meaning of Paragraphs (a) and
(b).
Made
Proposed Rule 1.9 is identical to ABA Model Rule 1.9, except for the Proposed Rule’s
requirements of written consent to waive a conflict of interest. The Board of Professional
Responsibility, however, has recommended the addition of a new Paragraph (a) that would
incorporate into the Rule the duty to former clients as stated in Formal Ethics Opinions 84-F-65
forth in the Formal Ethics Opinions are already included in the Proposed Rule. Proposed Rule
1.9(c) addresses the confidentiality issue addressed by Paragraph (a)(1) of the Board’s proposal.
Rule 1.9(a), which precludes adverse representation in “the same or a substantially related matter,”
clearly prohibits representation in the circumstances addressed by Paragraphs (a)(2) and (3) of the
Board’s proposal. The Comments provide further guidance as to when two matters will be deemed
to be substantially related. Also, because Model Rule 1.9 has been widely adopted, adding the
peculiar wording of the Formal Ethics Opinions would be inconsistent with the Committee’s goal
of promoting uniformity among state ethics rules, particularly the conflict of interest rules. The
Committee also believes that Proposed Rule 1.9(a) provides former clients more protection that
does the narrower formulation in the Ethics Opinions.
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)
COMMITTEE NOTES
Paragraph (a): The vicarious disqualification called for by paragraph (a) when a lawyer in
the firm is personally disqualified by Rules 1.7, 1.8(c), and 2.2 is consistent with DR 5-105(D).
The vicarious disqualification called for by paragraph (a) when a lawyer in the firm is personally
disqualified by Rule 1.9 is consistent with the Tennessee ethics opinions cited in the Committee
Notes to Proposed Rule 1.9.
Paragraph (c): Paragraph (c), read in conjunction with Rule 1.9(b), is intended to codify
Tennessee Formal Ethics Opinion 89-F-118 (which permits the use of screening procedures in a
law firm that has hired a lawyer who had previously been associated with a law firm and is
personally disqualified from representing interests adverse to a client of his or her former firm)
Paragraph (d):DR 5-105(D) does not specifically permit a client to consent to a
representation by a lawyer who otherwise would be vicariously disqualified from representing a
client.
Paragraph (a):Except for the cross-reference to Paragraph (c), Paragraph (a) is identical to
ABA Model Rule 1.10(a).
Paragraph (b) is identical to ABA Model Rule 1.10(b).
Paragraph (d): Paragraph (d) is similar to ABA Model Rule 1.10(c), with the clarifying
addition of “or former client.”
Paragraph (C) was deleted and Paragraph (B) has been revised so that this portion of the
Proposed Rule will conform to Model Rule 1.10. The effect of the change is to reverse the
Committee’s position with respect to the appropriateness of a law firm using screening procedures
when a lawyer leaves the firm, some of the firm’s clients go along, and the firm now wants to
represent a new client with interests materially adverse to its former client in a substantially related
matter. Model Rule 1.10(b) permits such representation only if no lawyer still associated with the
firm possesses confidential information that is material to the matter. If any lawyer still with the
firm possessed such confidential information, the firm could not prevent the disqualification by
screening the lawyer. Paragraph (C) would have permitted the law firm to undertake the
representation adverse to its former client if the firm adequately screened the lawyer who possessed
the confidential information from participation in the matter. Upon reconsideration, the Committee
has concluded that a law firm’s duty of loyalty to its former clients should preclude the
representation of a new client when any lawyer still associated with the firm possesses confidential
information that is material to the matter.
Made
1. The Committee has revised Paragraph A so it will conform to the ABA Model Rule. No
change in substance is intended.