Contrast With the New Firm

Contrast With the New Firm

One lawyer's move creates a conflicts question at each end of the trip, and the Model Rules answer the two questions with different tests. Rule 1.10(b), the subject of the sections above, judges the firm the lawyer left by what stayed behind. That firm is not prohibited from representing a person adverse to a client of the formerly associated lawyer unless the two conditions already studied are met: the matter is the same or substantially related, and a lawyer who remains holds material protected information.¹ Rule 1.10(a)(2) judges the firm the lawyer joined by what arrived. It governs a prohibition that rests on Rule 1.9(a) or (b) and arises out of the disqualified lawyer's association with a prior firm, which describes a lateral hire carrying a personal conflict from the old job.² The first step in any migration problem is to identify which firm the question concerns, because the same lawyer can leave one firm free and burden the next.

The tests differ because the danger sits in different places. Inside a firm, one lawyer's knowledge is imputed to every other, but a lawyer who departs sheds the taint of imputed disability at the old firm's door and takes along only the knowledge the lawyer actually possessed.³ The departed lawyer no longer has presumptive access to the former firm's secrets, so a court need not rely on the fiction of imputed knowledge. It can instead ask whether, and to what extent, the lawyer was reasonably likely to have obtained confidential information material to the current lawsuit.⁴ The former firm's own question is narrower still. Condition (b)(2) asks whether a lawyer who stayed holds the former client's protected information, and no screen figures in that inquiry, because the lawyer who left is no longer inside the firm.

The new firm faces the reverse problem. The incoming lawyer may carry the former client's actual confidences into a new office, and inside that office knowledge is imputed from lawyer to lawyer, so the newcomer's information is treated as available to every colleague.⁵ If the newcomer is personally disqualified, the conflict therefore spreads to the whole new firm. If the newcomer never participated in the matter and never acquired confidential information, there is no personal conflict to impute, even when the old firm and the new firm stand on opposite sides of the same dispute, because the lawyer individually has not changed sides.⁶ The burden of establishing that the lawyer acquired no such information rests on the lawyer.⁷ A new-firm problem thus begins with a question the former firm never faces: does the arriving lawyer personally hold the former client's protected information?

A new firm cannot point to a departure to make that danger disappear, so Rule 1.10(a)(2) lets it avoid imputation only through procedure, and the procedure comes as a package. The disqualified lawyer must be timely screened from any participation in the matter and apportioned no part of the fee.⁸ The firm must promptly give the affected former client written notice, and that notice must describe the screening procedures, state that the firm and the screened lawyer have complied with the Rules, state that review may be available before a tribunal, and promise prompt responses to written inquiries or objections.⁹ The screened lawyer and a partner of the firm must also give the former client certifications of compliance at reasonable intervals on written request, and again when the screening procedures end.¹⁰

Each part of the package covers a separate weakness. A wall alone would still leave the screened lawyer sharing in the firm's success against the former client, so the fee bar removes that stake while the screen removes access. Timeliness matters because a wall built after the lawyer has been exposed to the matter protects nothing that has already passed. The notice exists, in the rule's own words, to enable the former client to ascertain compliance, and the certifications give the client a way to keep checking, since the client sits outside the firm and cannot see the wall.

An exam stem that ends with the lawyer having left the old firm invites the answer that the conflict is cleared, and that answer is right only for the firm left behind. The migrating lawyer sheds the imputed taint of the old firm but keeps whatever the lawyer personally learned, and that personal conflict arrives at the new firm intact. The new firm's freedom then depends on when it acts as well as on what it does.

Screening of lateral hires has a contested history, and the jurisdiction matters. In Burgess-Lester v. Ford Motor Co., the court observed that the ABA's Ethics 2000 Commission had recommended a screening provision for lateral hires, that the ABA had not adopted it, and that Rule 1.10 therefore did not expressly allow screening when private attorneys changed firms.¹¹ The Model Rule text quoted above does now supply a screening route, so the gap that court described has closed in the Model Rules. A jurisdiction that does not accept screening of lateral hires gives the new firm no such route. The arriving lawyer's personal conflict stays imputed however carefully the firm builds its wall, and absent the former client's consent the firm remains barred. The former firm's analysis never involves a screen, so the jurisdictional question belongs to the new firm alone.