Imputation Within the Firm

Imputation Within the Firm

Rule 1.8(k) carries every prohibition in paragraphs (a) through (i) of Rule 1.8 across the whole firm: while lawyers are associated in a firm, a prohibition that applies to any one of them applies to all of them.¹ Paragraph (c) sits inside that range. Its two bans are one on soliciting a substantial gift from a client and one on preparing an instrument that gives the lawyer or a person related to the lawyer a substantial gift. Once either ban applies to one lawyer, it binds every lawyer in the firm.² The lawyer who would take the gift cannot hand the drafting to a colleague and stay clean.

Consider the rule without imputation. The ban would attach only to the lawyer named in the will, and that lawyer could ask an associate to draft the instrument and still collect the gift. Firm-wide reach closes that route, so it no longer matters whose hand holds the pen.

The same firm-wide reach explains why a colleague cannot serve as the client's independent adviser. In a disciplinary case over a will drafted for a client named Mrs. Lindinger, the lawyer recognized the conflict and recommended that she consult other counsel, but not independent counsel outside his firm. When she did not, he drafted the will himself. The court found that he acted with conscious awareness of the nature of his conduct and treated a Rule 1.8(c) violation as most serious.³ A colleague down the hall is bound by the same prohibition that binds the drafting lawyer, so that colleague cannot supply the outside perspective the client needs.⁴ Whatever work independent advice does elsewhere in the analysis, advice from inside the drafting lawyer's own firm cannot do it.

Not every conflict that disables one lawyer disables the whole firm, and the difference turns on which rule produced the conflict. Rule 1.10(a)(1) excepts from imputed disqualification a prohibition that is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers.⁵ A lawyer's investment in a company on the other side of a matter is the standard example, because the other lawyers in the firm ordinarily will not be similarly influenced or limited in representing the client.⁶ The exception has a boundary, though. If the other lawyers would extend such solicitude to the conflicted lawyer and that lawyer's personal interest that they would be inhibited in providing diligent and uncompromised representation, the personal-interest conflict becomes a firm conflict as well.⁷

The gift bans fall on the far side of that line. This chapter began by classifying a client's gift as a personal-interest conflict, which invites the inference that the Rule 1.10 carve-out lets the rest of the firm off. The inference fails. The carve-out is an exception to the imputed-disqualification rule in Rule 1.10(a), and nothing in the text of Rule 1.8(k) incorporates it. That rule says only that a prohibition applying to one lawyer applies to all.⁸

The sequence for a problem is therefore short. First ask whether the conflict is one of the specific prohibitions in Rule 1.8(a) through (i). If it is, imputation to the firm is automatic. If it is not, ask whether the lawyer's personal interest presents a significant risk of materially limiting the other lawyers' representation, and impute the conflict only if it does.