Effect on the New Firm

Rule 1.9(b) decides whether the migrating lawyer may act against the old firm's client, and it bars the lawyer only when the lawyer acquired information about that client that is protected by Rules 1.6 and 1.9(c) and material to the matter.¹ The lawyer's new colleagues are the next question, because a bar that reaches the whole firm costs the firm far more than one that stops at a single desk.

Imputation is the mechanism that turns one lawyer's bar into everyone's. Under Rule 1.10(a), if one lawyer in a firm has a conflict of interest, every lawyer in the firm has it.² Two ideas support the rule. The duty of loyalty runs from the entire firm to the client, whichever lawyer the firm assigns to the matter. And confidential information held by one lawyer is presumed shared with every other lawyer while the firm represents the client, so knowledge is imputed along with the conflict.³

The chain therefore begins with the lawyer's own bar, because imputation can spread only a conflict that exists. Rule 1.9(a) governs a lawyer who personally represented the former client, and Rule 1.9(b) governs a lawyer whose former firm represented that client.⁴ A lawyer who took no part in the old firm's representation (so is not barred under paragraph (a)) and obtained no confidential information material to the matter (so is not barred under paragraph (b)) may act adversely to the old firm's client. That lawyer's arrival at a new firm leaves no conflict to impute to the new colleagues.⁵

What the lawyer is presumed to have learned depends on how the old firm was run. A lawyer from an open firm, in which each lawyer has general access to client files and regularly participates in discussions of client matters, is presumed to have acquired information about all of its clients. A lawyer from a firm divided by practice, office, or internal structure, with access to only a limited number of files and discussions of those matters alone, may be inferred to know the clients actually served but not the others.⁶ Conflicts law often turns on how an organization really works in this way; courts, for instance, are generally more tolerant of simultaneous representation in a small, closely held corporation than in a large, publicly held one.⁷

When the lawyer cannot rebut the presumption of having acquired the former client's confidences, a second presumption follows: the lawyer is presumed to share them with the other lawyers at the new firm.⁸ The law does not wait for proof of leakage. An opinion in Maritrans GP Inc. v. Pepper, Hamilton & Scheetz notes that the majority conceded the concern is not that actual disclosure has occurred, but that the circumstances create significant potential for such disclosure.⁹ The presumption can be rebutted if, and only if, the jurisdiction recognizes screening to block the imputation of conflicts in this situation and the screen is established in a timely manner.¹⁰

A screen is the new firm's wall around the lawyer: the lawyer stays out of the matter, and the lawyer's knowledge stays away from the colleagues who handle it. The Model Rules take up screening in Rule 1.10(a)(2).¹¹ Whatever else a jurisdiction asks of a screen, it must be established in a timely manner. The wall must also protect the right client. Some screening cases dwell on separate locks for filing cabinets and passwords for electronic files, as if the hiring firm's own client files were at risk. That misses the point, because the client to be protected is the client of the old firm and the moving lawyer.¹²

Timing carries the most weight, because the presumption speaks to what happens once the lawyer arrives. A screen shows that confidences did not travel only if it stood before they had a chance to, and one assembled after the former client threatens a motion to disqualify protects nothing that has already moved.

Hypothetical Illustration

Carla leaves Firm A holding material confidences of a lender and joins Firm B, which represents a borrower against that lender in a related suit. Firm B lets her work down the hall for two months and circulates a screening memo only after the lender moves to disqualify. In a jurisdiction that follows the Model Rules, the memo comes too late to rebut the presumption that Carla shared what she knows, and Firm B is disqualified along with her.

Idris joins Firm C in the same position, with the same kind of confidences and a related matter. On his first day Firm C removes him from the matter, restricts his access to its files, tells the team not to discuss the case with him, cuts him out of the fee, and writes to the former client describing these steps. Firm C did what Rule 1.10(a)(2) asks, and in a jurisdiction that follows the Model Rules it may continue even though Idris is personally barred.

The two lawyers carry the same confidences into the same kind of dispute, and what separates the firms is timing. Firm B's memo shows what the firm wanted, not what Carla shared during the months before it issued. Firm C's measures stood before any information had occasion to move. Both results assume a jurisdiction that follows the Model Rules. In a state that does not recognize screening, even Firm C's careful wall would not rebut the presumption, and only the former client's waiver could help.

Jurisdictions do disagree about screening. Many federal courts approved ethical screening to avoid imputed disqualification in the migrating-lawyer context in at least some contexts, and a 2007 study found that nearly half of the states allowed it under at least some circumstances, although the balance of views among the states is constantly shifting.¹³ The Restatement permits screening in both the government-to-private-sector and the firm-to-firm transitions, but strictly limits it to the narrow situation where the confidential information communicated to the personally prohibited lawyer is unlikely to be significant in the matter.¹⁴ Lawyers who leave public service for private practice face a cousin of this problem under their own special conflict rules,¹⁵ and the Restatement treats the two kinds of move alike. Compare the separate rules written for former government lawyers.¹⁶

Imputation can also be waived. Rule 1.10(c) lets the affected client waive an imputed conflict on the conditions of Rule 1.7(b): the client must give informed consent, confirmed in writing, and the lawyer must reasonably believe that, despite the conflict that would otherwise be imputed, the lawyer can provide competent and diligent representation to each affected client.¹⁷ In a migrating-lawyer conflict the affected client is the former client, because its confidences are the ones at risk.¹⁸ Two consents therefore do different work. The former client's consent under paragraph (b) frees the lawyer personally,¹⁹ and its waiver under Rule 1.10(c) frees the firm.

Effect on the New Firm

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