Open and Compartmentalized Firms

Open and Compartmentalized Firms

Rule 1.9(b) reaches a moving lawyer only if the lawyer actually acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter.¹ The presumption from the last section fills the gap between that requirement and what a tribunal can know, but an assumption is reliable only to the extent that it matches how information actually reaches lawyers. Comment 6 to Rule 1.9 tells the tribunal where to look for the match: the manner in which the lawyers at the former firm worked together.² The question is the same for every migrating lawyer, namely how much the lawyer was in a position to learn about each client, and different workplaces answer it differently.

A firm operated in an open way, typical of many smaller firms, is one in which each lawyer has “general access” to all client files and “regularly participate[s] in discussions” of client matters with other lawyers. A lawyer who leaves such a firm is presumed to have acquired information about all of its clients.³ The presumption fits because information in an open firm does not travel only through assigned work. A lawyer who never staffed a client’s matter can still read its file, hear it reviewed at a meeting, or be asked about it in the hallway, so the chance to learn spreads across the whole client list. That is also why the usual rebuttal, “I did no work for that client,” answers a narrower question than the rule asks. The real question is whether the matter was ever put in front of the lawyer, and in an open firm it usually was.

A firm divided into separate areas by practice, office location, or internal structure works the other way. When a lawyer there has access to only a “limited number” of client files and discusses client matters only with the other lawyers on those matters, Comment 6 says it may be “inferred that such a lawyer in fact is privy to information about the clients actually served but not those of other clients.”⁴ The divisions matter because they remove the ordinary occasions for learning. A tax lawyer who cannot open the litigation group’s files, and who is never in the room when its matters are discussed, has no usual way to hear about them. Charging that lawyer with knowledge of those clients would penalize the lawyer for facts that never arrived, and without the inference the presumption would reach clients of groups the lawyer never dealt with.

The test is how the firm actually operated, and headcount is only a rough guide. The comment links openness to smaller firms because they tend to share files and discussions, but its criteria are access and participation. A small firm whose practice groups kept apart would count as divided, and a large firm that held firm-wide sessions on every major client would count as open. Exam stems usually signal which workplace they describe through details of access and discussion, as the two invented lawyers below show.

Ravi and Joan face the same question, whether each was in a position to learn about the adverse client, and their old firms answer it differently. The structure of Ravi’s firm put X’s matter in front of him whether or not he was staffed on it, while the structure of Joan’s kept the litigation client’s matter away from her. The difference carries into rebuttal. A moving lawyer may show, usually by affidavit, that she did no work for a client of the old firm or did not work on a particular matter, so that she could not have learned confidential information about that client.⁵ Joan’s affidavit that she did no work for the litigation client carries real weight because her firm’s walls corroborate it. Ravi’s identical statement leaves open everything he heard at the weekly meeting.

The structure of the old firm strengthens the lawyer’s evidence but does not replace it. In all events the burden rests on the lawyer to establish that she did not in fact acquire confidential information about the person now adverse to a client of her new firm,⁶ and that burden is the same in a divided firm as in an open one. Joan therefore has to put her situation before the tribunal: her practice group, the files she could open, the discussions she joined. The comment says only that limited knowledge “may be inferred,” which gives her a basis for argument and leaves the decision to the tribunal. Two facts would defeat the inference. If Joan had worked on the litigation client’s matter, the inference runs against her, because it reaches the clients actually served. If she had sat in firm-wide sessions where partners reviewed that client’s affairs, she would no longer be a lawyer who discussed client matters only with the lawyers on those matters.

One court framed the inquiry the same way once the lawyer has left. A departed attorney no longer has presumptive access to the former firm’s secrets, so the court “need no longer rely on the fiction of imputed knowledge” and may make a “dispassionate assessment of whether and to what extent the attorney, during his tenure with the former firm, was reasonably likely to have obtained confidential information material to the current lawsuit.”⁷ The open-versus-divided contrast supplies the facts that make “reasonably likely” answerable: how many files the lawyer could reach and whose discussions the lawyer joined. The wording is the court’s own and not the Model Rule’s, so the passage illustrates the reasoning without defining the rule’s terms.