Imputation to the Firm

Imputation to the Firm

A lawyer who has been disqualified by a prospective client's confidences cannot cure the problem by handing the adverse matter to a colleague down the hall. The second sentence of Rule 1.18(c) closes that route: "If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d)."¹ Lawyers call this spreading effect imputation, because one lawyer's disqualification is attributed to every lawyer associated with that lawyer's firm. The bar follows the matter. It reaches "such a matter," the one that triggered the disqualification, and a cure under paragraph (d) can lift it.

The reason is the risk logic that runs through all of the conflicts rules. They keep lawyers out of positions in which there is a significant risk that they will compromise duties owed to clients, and they aim at that risk, not at proof of actual harm.² A prospective client faces much the same risk whether the adverse matter goes to the lawyer who heard the confidences or to a colleague in the same firm, and that person has no practical way to check what passes between them. Imputation therefore treats the firm, not the individual lawyer, as the unit that must stay out.

Imputation extends a disqualification; it never creates one. The firm-wide bar applies only when a lawyer "is disqualified from representation under this paragraph," and the paragraph disqualifies a lawyer who would represent a client with interests materially adverse to a prospective client, in the same or a substantially related matter, after receiving information that could be significantly harmful to that person in the matter.⁴ A consultation alone does not meet that test. When a fact pattern describes a consultation followed by a colleague's adverse engagement, ask first what the consulted lawyer actually received.

The word knowingly narrows the bar. It reaches a lawyer who undertakes or continues the adverse matter aware of the colleague's disqualification. The reach of continue matters too: a firm already working on a matter cannot ignore a disqualification that comes to light later.⁶

Imputation is not peculiar to prospective clients. Ordinary concurrent conflicts are imputed to the firm as well, and for those a screen of the conflicted lawyer does not avoid the imputation.⁷ Rule 1.18 departs from that approach: paragraph (d)(2) lets the other lawyers in the firm avoid the imputed conflict by screening out the lawyer who received the information.⁸ A version of the rule quoted in one judicial opinion folds imputation and both cures into a single paragraph. The firm may not take the matter unless the affected client and the former prospective client both give informed consent, confirmed in writing, or the disqualified lawyer is timely screened, apportioned no part of the fee, and written notice is promptly given to the former prospective client.⁹ The next section sets out the conditions for each cure. Until one is satisfied, the consulted lawyer's disqualification stays with the whole firm.