Imputation When a Lawyer Leaves

Former Firm After a Lawyer Leaves

Imputation When a Lawyer Leaves

A lawyer's departure ends the automatic imputation of her conflict to the firm she left, but it does not always end the firm's problem. Rule 1.10(b) sets the terms in one dense sentence: when a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless two further conditions are met.¹ Each phrase narrows the rule, so the sentence is worth taking apart. First, though, the default it relaxes needs a look.

While a lawyer remains associated with a firm, a conflict that would bar that lawyer personally is imputed to every other lawyer there under Rule 1.10(a). Two presumptions support the default. The duty of loyalty is owed by the entire firm, whichever lawyer is assigned to the work. And during the representation, confidential information held by one lawyer is presumed to have been shared with every other lawyer in the firm.²

Both presumptions assume that the conflicted lawyer is still in the building. A lawyer who leaves carries away only the client knowledge she actually had, not the knowledge presumed to circulate while she practiced at the old firm.³ The court in Adams v. Aerojet-General Corp. drew the same line. Once an attorney departs, it reasoned, a blanket rule is unnecessary because she no longer has presumptive access to the former firm's secrets. The court can then drop the fiction of imputed knowledge and ask whether the attorney was reasonably likely, during her tenure, to have obtained confidential information material to the current lawsuit.⁴ That shift from presumed information to actual information is the logic behind Rule 1.10(b). The departure lifts the automatic bar, and what remains depends on what is really left behind.

The rule is a chain of requirements that must line up before it applies at all, so it is easiest to run as a sequence of questions in the order the text states them.

The first three steps are thresholds, and step four decides the firm's exposure. Most errors come at step three, where a departure is mistaken for a clearing event.

The boundary follows from what the default protects. A firm owes loyalty to every present client, whoever handles the work, and no lawyer in the firm may act directly adverse to that client.⁵ That is the current-client conflict rule, Rule 1.7, and it exists whether or not any particular lawyer ever served the client. It is also a separate inquiry with its own variables. Courts, for example, are as a general rule more tolerant of simultaneous representation in a small, closely held corporation than in a large, publicly held one.⁶ Rule 1.10(b) relieves only the imputation of a departed lawyer's conflict, so it cannot touch a conflict that never depended on that lawyer.

With the personal taint gone, the firm is freed unless both conditions are present. The first is that the matter is the same as, or substantially related to, the one in which the departed lawyer represented the client.⁷ The second is that a lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.⁸ The bar continues only when both hold, and the next two sections take them in turn.

Conflicts tied to a lawyer's government service fall outside this analysis entirely. The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.⁹ A firm facing that question turns to Rule 1.11 and does not run the Rule 1.10(b) steps.