Concept
Working Through a Departure
When the conflicted lawyer leaves: the former firm's continuing duties
Working Through a Departure
Rule 1.10(b) is easiest to retain when you run its text, in order, against one set of facts and then change one fact at a time. The lead-in supplies three filters: a lawyer has terminated an association with the firm, the person the firm now wants to represent has interests materially adverse to a client the departed lawyer represented, and that client is not currently represented by the firm.1 Two conditions then decide whether the bar survives. The matter must be the same as or substantially related to the one in which the departed lawyer represented the client, and a lawyer remaining in the firm must hold protected information material to it.2
Abbott's departure is what opens the rule. While Abbott stayed, what Abbott knew counted as known to every lawyer in the firm, Darby included. Once Abbott leaves, Abbott sheds that imputed taint at the old firm's door and carries away only what Abbott actually knew,3 and the firm's position is measured by Rule 1.10(b). Client's status comes next. Client has no other work at the firm, so it is a former client, and the rule's relief is available. Rival's request clears the adversity filter easily, because a lawsuit against Client is a direct attack on a client the departed lawyer represented. All three filters are met, and the firm is free to take Rival's matter unless both further conditions are present.
The relatedness condition is satisfied without difficulty. Rival's suit attacks the very contract Abbott negotiated, so the new matter is the same one in which the departed lawyer represented Client.4 Transactional files like this one invite such disputes, because the participants in a deal often hold different interests and may give the drafting lawyer conflicting instructions, as corporate takeovers show.5
The retained-information condition asks about the lawyers who stayed, and Darby is one of them. Darby knows Client's bargaining limits, which is the kind of confidential information Rules 1.6 and 1.9(c) protect, and it bears directly on a dispute over what the contract means or whether it can be enforced.6 Both conditions are met, so the firm remains barred from suing Client for Rival. The bar now rests on Darby's knowledge: Abbott's departure took Abbott's own knowledge out of the firm, but Darby's stayed behind.
Which single fact, if different, would free the firm? The answer depends on the condition being tested, and the retained-information condition is the one most likely to move.
Adversity and relatedness are still present, but no remaining lawyer holds protected information material to the dispute. Condition (b)(2) fails, and the firm may take Rival's case.7 The firm no longer has anyone inside it who can misuse Client's confidences, and the second condition registers exactly that fact.
The relatedness condition moves independently. Suppose Darby is still at the firm and Rival asks it to sue Client over an unrelated trademark dispute. Condition (b)(1) fails, because a trademark dispute shares no transaction with the supply negotiation and draws on none of its confidences.8 Darby's memory of Client's bargaining limits would not be material to a trademark dispute either. Failure of the first condition alone would be enough, because the two conditions are joined by a conjunction and both must be met for the bar to survive.
The entry filters can also move, though not always in the firm's favor. Had Client retained the firm for even a small unrelated payroll matter, Client would be a current client, and Rule 1.10(b) would offer nothing, because its relief reaches only a client the firm does not currently represent.9 The ordinary rules for conflicts with present clients would govern instead. Had the departed lawyer left no connection to a client at all, or had the firm's new matter not been materially adverse to that client, the conditions would never come into play.
A bar that survives both conditions can still be lifted. Rule 1.10(c) allows the affected client to waive the disqualification by informed consent confirmed in writing. Here the affected client is Client. The bar exists to keep Client's confidences from being used against Client, so Client holds the stake and is best placed to judge whether the firm's safeguards make the risk acceptable. Both parts of the standard do work: the consent must be informed, and it must be confirmed in writing, so an offhand assurance leaves the bar in place.
Rule 1.10(b) lists no screening exception. A wall around Darby might make Client more willing to consent, but it supports the waiver and does not replace it. The full analysis therefore runs from departure, through status, adversity, relatedness, and retained information, and ends with the question whether Client will consent.