Imputation Within the Firm

Imputation Within the Firm

Model Rule 1.8(k) extends the bar on proprietary interests beyond the lawyer who is handling the case: "While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them."¹ The term for this effect is imputation: the law attributes one lawyer's prohibition to every lawyer in the same firm. Applied to this chapter's subject, imputation means that when the representing lawyer may not acquire a proprietary interest in the cause of action or subject matter of the litigation, no lawyer associated with that firm may acquire one either.²

Without the rule, the prohibition would be easy to get around. The representing lawyer could not buy 5% of the disputed land, but a colleague down the hall could, and the stake would sit inside the firm that is conducting the case. Imputation closes that route by treating the firm as one unit for the paragraphs it covers.

What makes the associate's purchase prohibited is membership in the firm, not involvement in the case. A question that tests the limit of imputation will therefore move the buyer outside the firm.

Imputation carries the exceptions along with the prohibition, because they are part of the same rule.³ A firm whose lawyer contracts with a client for a reasonable contingent fee in a civil case therefore collects that fee without violating the rule, because the fee falls within the exception.⁴ What imputation reaches is a colleague's stake that falls outside the exceptions.

By its own wording, the imputation rule covers paragraphs (a) through (i) of Rule 1.8 and no others.⁵ That range includes the neighboring rules on gifts and on financial assistance to clients in litigation, so a colleague of the representing lawyer cannot supply a client's rent any more than the representing lawyer can.⁶ The sexual-relationship rule in paragraph (j) lies outside the range, and the rule is unusual in exactly that respect: the conflicts it recognizes are not imputed to other lawyers in the same firm.⁷ Rule 1.8 does not treat imputation uniformly. Its disclosure, consent, and imputation requirements vary from provision to provision, and each deserves its own check.⁸ On an exam, say that the prohibitions in paragraphs (a) through (i) are imputed. Do not say that every Rule 1.8 prohibition is.