Choosing the Governing Rule

Two texts carry a conflict from one lawyer to a whole firm, and every imputation problem begins with choosing between them. Rule 1.10(a) provides that while lawyers are associated in a firm, none of them may knowingly represent a client when any one of them, practicing alone, would be prohibited from doing so by Rule 1.7 or Rule 1.9, and the sentence ends in the word “unless,” which is where the exceptions begin.¹ Rule 1.8(k) is a flat sentence with nothing after it: a prohibition in paragraphs (a) through (i) that applies to any one associated lawyer applies to all of them.² The exceptions belong to the first text alone. A conflict that looks like something Rule 1.10(a) would excuse may therefore sit under a rule that excuses nothing.

In its baseline form, Rule 1.10(a) works in two directions. If one lawyer in the firm represents a client, no other lawyer may take a matter directly adverse to that client, or a matter in which a single lawyer would be materially limited by duties to another client, a former client, or a third person. And if any lawyer would be barred from a new matter adverse to a former client in the same or a substantially related matter, no other lawyer in the firm may take it either.³

The personal-interest exception shows what the exceptions in Rule 1.10(a) are for. When a lawyer is barred by a purely personal interest, such as a relationship with or an investment in a person or entity on the other side of the matter, the other lawyers in the firm ordinarily will not be influenced or limited in zealous and loyal representation.⁴ Rule 1.10(a)(1) therefore lifts imputation when the prohibition rests on a personal interest of the disqualified lawyer and presents no significant risk of materially limiting the representation by the remaining lawyers.⁵ The exception has a boundary. If the other lawyers would extend so much solicitude to the personally conflicted lawyer that they would be inhibited from diligent and uncompromised representation, the personal conflict becomes a firm conflict as well.⁶

Rule 1.8(k) asks none of those questions. It does not ask whether the prohibited lawyer’s interest is personal or whether colleagues would feel inhibited; it applies the prohibition to every associated lawyer.⁷ The personal-interest exception is a clause of Rule 1.10(a)(1), and it does not travel to the Rule 1.8 list. A firm therefore cannot recast a prohibited client transaction as a merely personal matter in order to invoke it.

Exam Analysis Steps

The right exception can be found only after the right imputing text, so the routing runs best as a short sequence in a fixed order:

Ask who holds the conflict. A lawyer in a private firm continues through the steps below; a nonlawyer employee or a lawyer in a government office is handled separately.
Ask where the conflict comes from: Rule 1.7 or Rule 1.9, one of paragraphs (a) through (i) of Rule 1.8, or the sexual-relations paragraph, which lies outside that range.
Match the source to its imputing text, which is Rule 1.10(a) for Rule 1.7 and Rule 1.9 conflicts and Rule 1.8(k) for paragraphs (a) through (i) of Rule 1.8.
Under Rule 1.10(a), test the personal-interest exception and, if the bar is a Rule 1.9 prohibition arising from a prior firm, the lateral-screening exception. Under Rule 1.8(k), look for no exception and ask only whether the prohibition applies to the lawyer at all, since a bar that does not bind the first lawyer leaves nothing to impute.
If no exception is open, treat every lawyer in the firm as barred, whichever lawyer is assigned to the matter.

Step two carries the weight, because the source of the conflict fixes the imputing text, and the imputing text fixes which exceptions can even be argued. Step one removes two groups before the sequence begins. Conflicts held by nonlawyer staff follow the separate treatment described earlier in this chapter. Government offices are routed through Rule 1.10(d) to Rule 1.11, so the per se imputation rule does not extend to them; even so, associated lawyers in a government office may be directly disqualified when a colleague’s conflict is of a kind that office relationships or other influences would materially limit their own representation.⁸

Both partners have money at stake, so the size of the stake does not separate the two scenes; the source of the conflict does. The investor’s stake is an ordinary personal interest, so the analysis turns to whether the remaining lawyers would be materially limited. The lot purchase falls within paragraph (a) of Rule 1.8, so paragraph (k) has already answered the imputation question.

Even inside the personal-interest branch the answer can reverse. If the colleagues would extend enough solicitude to the conflicted partner to inhibit diligent work, the personal conflict becomes theirs as well.⁹ A Rule 1.8 label also does not guarantee imputation, because paragraph (k) stops at paragraph (i). A lawyer’s sexual relationship with a client falls under paragraph (j), beyond that range, so the bar stays with the lawyer as an ordinary personal-interest conflict rather than spreading to the firm.¹⁰ The solicitude test still applies to the colleagues, and a firm whose lawyers would be inhibited out of concern for the lawyer has a conflict of its own.

Lateral-hire facts add one more routing question, because a screen is available along only one path. Rule 1.10(a)(2) offers relief when the prohibition is based on Rule 1.9(a) or (b) and arises out of the disqualified lawyer’s association with a prior firm, and then only if the firm meets the screening, notice, and certification conditions described earlier in this chapter.¹¹ Every other source of a lateral’s problem stays on the baseline.

The first lateral has the kind of problem a screen was designed to treat, so the three conditions become the next questions. The second lateral’s conflict makes the firm itself adverse to a current client, and isolating one lawyer inside a firm that is suing that client leaves the firm’s own loyalty divided. A lateral who arrives holding a Rule 1.8 prohibition has no screening route either, because paragraph (k) contains no screening clause.¹²

Choosing the Governing Rule

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