LAW 565-001 – Professional Responsibility

Imputed Conflict of Interest


A firm is treated as a single lawyer under Rule 1.10.

Firm
  1. "Firm" or "law firm" denotes a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization.

What constitutes a firm depends on the specific facts. It can exist if they present themselves in a way that suggests that or if they conduct like a firm.

A firm can have several offices in different cities, and they will all be one firm.

A firm can exist for some purposes, like prohibiting representing both sides, but not for other purposes, like attribution of knowledge.

A conflict is not imputed if the lawyer causing the conflict is timely screened and not paid directly therefrom.

Screen

Screening is the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law. Rule 1.0(k).

Screening is permitted in six situations:

  • When a lawyer has conflict from his association with a prior firm (Rule 1.10(a)(2))
  • When a lawyer has a conflict from a personal interest that does not have a significant risk of materially impacting the other lawyers' representation (Rule 1.10(a)(1))
  • When a former nonlawyer employee has become a lawyer (Rule 1.10, Comment 4)
  • When a government lawyer entered a firm (Rule 1.11)
  • When a lawyer received confidential information from a prospective client who did not become a client (Rule 1.18)
  • When a lawyer is disqualified because he was a judge, law clerk, arbitrator, or something similar. (Rule 1.12)

When a screening begins, a letter must be sent to the former client informing them of the screening procedures and that they have the right to challenge them in court.

A firm can still get a waiver under Rule 1.7.

Government Lawyer
Former Government Lawyer

Former government lawyers are not bound by Rule 1.9(a).

Rule 1.9(c)'s prohibitions against us[ing] information relating to the representation to the disadvantage of the former client or reveal[ing] information relating to the representation except as these Rules would permit or require with respect to a client. Rule 1.11(a)(1).

A former government lawyer also shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation. Rule 1.11(a)(2).

Matter
  1. As used in [Rule 11], the term "matter" includes:
    1. any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties, and
    2. any other matter covered by the conflict of interest rules of the appropriate government agency.

A former government lawyer who gained confidential government information about a person at such time 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. Rule 1.11(c).

Confidential Government Information

Confidential government information is information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. Rule 1.11(c).

Former government lawyers running afoul of Rule 1.11 can still be screened. Rule 1.11(b).

  1. [A current government lawyer] shall not:
    1. participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or
    2. negotiate for private employment with any person who is involved as a party or as 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).