Imputation Within the Firm

Imputation Within the Firm

A lawyer who may not use a client’s information against the client cannot cure the problem by passing the information to a partner. Rule 1.8(k) shuts that door: while lawyers are associated in a firm, a prohibition in Rule 1.8(a) through (i) that applies to any one of them applies to all of them.¹ Rule 1.8(b) falls inside that range. The bar on using client information to the client’s disadvantage without informed consent therefore binds every lawyer in the firm, including one who never met the client.² On an exam, an answer that finds one lawyer in violation should go on to ask who else is associated with that lawyer in the firm.

The conflicts rules aim at the risk that lawyers will compromise their duties to clients, not at harm that has already occurred.³ That risk survives if the bar stops at the lawyer who learned the information. A colleague remains free to buy, bid, or trade on the client’s plan, and the client is exposed exactly as if the first lawyer had acted. Applying the bar to every associated lawyer closes that gap and removes any reason to route the use through someone else.⁴

Imputation under Rule 1.8(k) operates only “while lawyers are associated in a firm.” The first question in any imputation problem is therefore whether the lawyers are in fact associated in a firm.

The partner in the first scene sits where the client’s information can travel. The office-sharing lawyer in the second scene does not.

The text of Rule 1.8(k) also sets a boundary: it covers paragraphs (a) through (i) and stops there.⁵ The rule on sexual relationships with clients, Rule 1.8(j), lies outside that range. It is unusual because the conflicts it recognizes are not imputed to other lawyers in the same firm.⁶ The contrast follows from what each rule guards against. Rule 1.8(j) protects vulnerable clients from abuse and keeps a lawyer’s independent judgment from being clouded by feelings for the client.⁷ Those feelings and that relationship belong to one lawyer, and a colleague who has no such relationship has no compromised judgment to guard against. Information is different, because any associated lawyer can pick it up and act on it. The usual exam error is to assume that every Rule 1.8 prohibition is imputed, when the text reaches only paragraphs (a) through (i).

This section covers only the Rule 1.8(k) form of imputation. The imputation of conflicts generally is a separate subject.