Ethics Question of the Month - February 2019
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Lawyer A worked at Firm XYZ. Firm XYZ represented Company Z in numerous litigation and transactional matters. While at Firm XYZ, Lawyer A worked on several of Company Z’s employment litigation cases.
Lawyer A then left Firm XYZ and moved to Firm JKL. Firm JKL represents clients who are adverse to Company Z in breach-of-contract cases. Firm JKL wants Lawyer A to be available to represent clients against Company Z, but, for the moment, it is content to have Lawyer A doing other litigation.
Firm XYZ knows that Firm JKL is adverse to its client, Company Z, and that Lawyer A has joined Firm JKL. Firm XYZ asserts a conflict and objects to Firm JKL being adverse to Company Z because Lawyer A is has joined Firm JKL.
Which of these statements is the most accurate?
A. Firm JKL has a conflict in being adverse to Company Z because Lawyer A is a member of Firm JKL and is Company Z’s former attorney.
B. Firm JKL would have a conflict in being adverse to Company Z, but Firm XYZ didn’t timely object when it learned that Lawyer A was joining Firm JKL.
C. Firm JKL has a potential conflict, which can be cured by screening Lawyer A from any representation adverse to Company XYZ.
D. Screening Lawyer A from Company Z won’t cure the conflict because the screen was not in place before Lawyer A arrived at Firm JKL; otherwise it would have worked.
E. Firm JKL has no conflict arising from Lawyer A being adverse to Company Z in breach of contract cases because they are not substantially related to the employment litigation cases where Lawyer A represented Company Z while at Firm XYZ.
Consider Rule 1.09, and two of its official Comments:
(a) Without prior consent, a lawyer who personally has formerly represented a client in a matter shall not thereafter represent another person in a matter adverse to the former client:
- (1) in which such other person questions the validity of the lawyer's services or work product for the former client;
- (2) if the representation in reasonable probability will involve a violation of Rule 1.05; or
- (3) if it is the same or a substantially related matter.
(b) Except to the extent authorized by Rule 1.10, when lawyers are or have become members of or associated with a firm, none of them shall knowingly represent a client if any one of them practicing alone would be prohibited from doing so by paragraph (a).
(c) When the association of a lawyer with a firm has terminated, the lawyers who were then associated with that lawyer shall not knowingly represent a client if the lawyer whose association with that firm has terminated would be prohibited from doing so by paragraph (a)(1) or if the representation in reasonable probability will involve a violation of Rule 1.05.
Comment 3. Although paragraph (a) does not absolutely prohibit a lawyer from representing a client against a former client, it does provide that the latter representation is improper if any of three circumstances exists, except with prior consent. The first circumstance is that the lawyer may not represent a client who questions the validity of the lawyer's services or work product for the former client. Thus, for example, a lawyer who drew a will leaving a substantial portion of the testator's property to a designated beneficiary would violate paragraph (a) by representing the testator’s heirs at law in an action seeking to overturn the will.
Comment 7. Thus, the effect of paragraph (b) is to (a) extend any inability of a particular lawyer under paragraph (a) to undertake a representation against a former client to all other lawyers who are or become members of or associated with any firm in which that lawyer is practicing. If, on the other hand, a lawyer disqualified by paragraph (a) should leave a firm, paragraph (c) prohibits lawyers remaining in that firm from undertaking a representation that would be forbidden to the departed lawyer only if that representation would violate sub-paragraphs (a)(1) or (a)(2). Finally, should those other lawyers cease to be members of the same firm as the lawyer affected by paragraph (a) without personally coming within its restrictions, they thereafter may undertake the representation against the lawyer's former client unless prevented from doing so by some other of these Rules.
First, there is no global prohibition against a lawyer acting adversely to a former client—unless one of the sub-parts of Rule 1.09(a) applies. The most common basis for a conflict from representing a former client arises from a “substantial relationship” between the prior representation and the current adverse representation. See Rule 1.09(a)(3). Lawyer A’s prior representation of Company Z involved employment litigation. Firm K’s litigation matters against Company Z involve commercial breach of contract cases. In the absence of other facts, the prior representations and the current representations do not appear to be “substantially related” within the meaning of Rule 1.09(a)(3). Further, given the differences in the subject matter of Lawyer A’s prior representations and Firm JKL’s adverse representations, it is unlikely that whatever confidential information Attorney A previously acquired about Company Z is relevant to Firm JKL’s adverse representations. A lawyer is not presumed to have acquired all of a former client’s confidential information, but only that information that would be reasonably relevant to the prior representation (i.e., within the scope of representation).
Second, even though Firm XYZ is representing Company Z adverse to Firm JKL in matters that were pending while he was at the Firm XYZ, Lawyer A did not “personally represent” Company Z in those matters. Lawyer A apparently had no involvement in those representations, had no contact with those files, and did not receive any of Company Z’s confidential information regarding those matters. While Lawyer A was at Firm XYZ, he was disqualified from acting adversely to Company Z in those same matters. Once Lawyer A left Firm XYZ, however, that disqualification did not follow him to Firm JKL and does not prevent Firm JKL from continuing its representations adverse to Company Z. Further, Lawyer A can now act adversely to Company Z as long as he does not otherwise violate Rule 1.09. Lawyer A is still obligated to protect Company Z’s confidential information acquired while he represented Company Z.
Therefore, E is the most accurate answer.