Rule 1.10. Imputation of Conflicts of Interest: General Rule

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.

(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:

(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and

(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.

(c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7.

(d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.

Background

The Louisiana Supreme Court adopted this rule on January 20, 2004. It became effective on March 1, 2004, and has not been amended since.

Louisiana Rule 1.10 differs from ABA Model Rule of Professional Conduct 1.10 (2009) in one significant respect. The ABA Model Rule does not impute former-client conflicts arising under Model Rule 1.9(a) and Model Rule 1.9(b) to other members of the disqualified lawyer’s firm if: (a) the disqualified lawyer represented the former client at another firm, (b) the new firm screens the disqualified lawyer from the matter, (c) the new firm provides notice to the affected former client, and (d) the new firm periodically certifies to the former client its compliance with the Model Rules and screening procedures. See Model Rule 1.10 (2009).

Paragraph (a): Nonimputation of Personal Interest Conflicts

In 2002, the ABA included a reference in Model Rule 1.10(a) to exclude “personal interest” conflicts from the scope of imputation. The ABA included this reference to eliminate imputation in the case of conflicts involving a lawyer’s own personal interest, at least when the usual concerns justifying imputation are not present. The exception applies only when the prohibited lawyer does not personally represent the client in the matter and no other circumstances suggest that the conflict of the prohibited lawyer is likely to influence the others’ work. This was a substantive change in the Rule, but the ABA believed that Rule 1.10 provides clients with all the protection they need, given that the exception applies only when there is no significant risk that the personal-interest conflict will affect others in the lawyer’s firm. See ABA Ethics 2000 Revision Notes to R. 1.10 (2002).

Paragraph (d): Former Government Lawyers

In 2002, the ABA included paragraph (d) to clarify that Rule 1.11 is intended to be the exclusive Model Rule governing the imputation of conflicts of interests of a current or former government lawyer. See id.

Comments to ABA Model Rule 1.10

Definition of “Firm”

[1] For purposes of the Rules of Professional Conduct, the term “firm” denotes lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization. See Rule 1.0(c). Whether to or more lawyers constitute a firm within this definition can depend upon the specific facts. See Rule 1.10, Comments [2] – [4].

Principles of Imputed Disqualification

[2] The rule of imputed disqualification stated in paragraph (a) gives effect to the principle of loyalty to the client as it applies to lawyers who practice in a law firm. Such situations can be considered from the premise that a firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client, or from the premise that each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom the lawyer is associated. Paragraph (a)(1) operates only among the lawyers currently associated in a firm. When a lawyer moves from one firm to another, the situation is governed by Rules 1.9(b) and 1.10(a)(2) and 1.10 (b).

[3] The rule in paragraph (a) does not prohibit representation whether neither questions of client loyalty nor protection of confidential information are presented. Where one lawyer in a firm could not effectively represent a given client because of strong political beliefs, for example, but that lawyer will do no work on the case and the personal beliefs of the lawyer will not materially limit the representation by others in the firm, the firm should not be disqualified. On the other hand, if an opposing party in a case were owned by a lawyer in the law firm, and others in the firm would be materially limited in pursuing the matter because of loyalty to that lawyer, the personal disqualification of the lawyer would be imputed to all others in the firm.

[4] The rule in paragraph (a) also does not prohibit representation by others in the law firm where the person prohibited from involvement in a matter is a nonlawyer, such as a paralegal or legal secretary. Nor does paragraph (a) prohibit representation if the lawyer is prohibited from acting because of events before the person became a lawyer, for example, work that the person did as a law student. Such persons, however, ordinarily must be screened from any personal participation in the matter to avoid communication to others in the firm of confidential information that both the nonlawyers and the firm have a legal duty to protect. See Rules 1.0(k) and 5.3.

[5] Rule 1.10(b) operates to permit a law firm, under certain circumstances, to represent a person with interests directly adverse to those of a client represented by a lawyer for formerly was associated with the firm. The Rule applies regardless of when the formerly associated lawyer represented the client. However, the law firm may not represent a person with interests adverse to those of a present client of the firm, which would violate Rule 1.7. Moreover, the firm may not represent the person where the matter is the same or substantially related to that in which the formerly associated lawyer represented the client and any other lawyer currently in the firm has material information protected by Rules 1.6 and 1.9(c).

[6] Rule 1.10(c) removes imputation with the informed consent of the affected client or former client under the conditions stated in Rule 1.7. The conditions stated in Rule 1.7 require the lawyer to determine that the representation is not prohibited by Rule 1.7(b) and that each affected client or former client has given informed consent to the representation, confirmed in writing. In some cases, the risk may be so severe that the conflict may not be cured by client consent. For a discussion of the effectiveness of client waivers of conflicts that might arise in the future, see Rule 1.7, Comment [22]. For a definition of informed consent, see Rule 1.0(e).

[7] Rule 1.10(a)(2) similarly removes the imputation otherwise required by Rule 1.10(a), but unlike section (c), it does so without requiring that there be informed consent by the former client. Instead, it requires that the procedures laid out in sections (a)(2)(i)-(iii) be followed. A description of effective screening mechanisms appears in Rule 1.0(k). Lawyers should be aware, however, that, even where screening mechanisms have been adopted, tribunals may consider additional factors in ruling upon motions to disqualify a lawyer from pending litigation.

[8] Paragraph (a)(2)(i) does not prohibit the screened lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly related to the matter in which the lawyer is disqualified.

[9] The notice required by paragraph (a)(2)(ii) generally should include a description of the screened lawyer’s prior representation and be given as soon as practicable after the need for screening becomes apparent. It also should include a statement by the screened lawyer and the firm that the client’s material confidential information has not been disclosed or used in violation of the Rules. The notice is intended to enable the former client to evaluate and comment upon the effectiveness of the screening procedures.

[10] The certifications required by paragraph (a)(2)(iii) give the former client assurance that the client’s material confidential information has not been disclosed or used inappropriately, either prior to timely implementation of a screen or thereafter. If compliance cannot be certified, the certificate must describe the failure to comply.

[11] Where a lawyer has joined a private firm after having represented the government, imputation is governed under Rule 1.11(b) and (c), not this Rule. Under Rule 1.11(d), where a lawyer represents the government after having served clients in private practice, nongovernmental employment or in another government agency, former client conflicts are not imputed to government lawyers associated with the individually disqualified lawyer.

[12] Where a lawyer is prohibited from engaging in certain transactions under Rule 1.8, paragraph (k) of that Rule, and not this Rule, determines whether that prohibition also applies to other lawyers associated in a firm with the personally prohibited lawyer.

Annotations

Generally

Louisiana Rule 1.10(a) sets forth a simple rule: if one lawyer in the firm has a nonpersonal conflict of interest, the rest of the lawyers in the firm do as well. Thus, if Partner A is currently handling a matter that is directly adverse to a prospective client of Partner Z, then Partner Z may not undertake the representation of that prospective client. Not all conflicts are imputed to other members of a disqualified lawyer’s firm.

Defining “Firm”

Rule 1.10 imputes disqualification to all members of the disqualified lawyer’s “firm.” Rule 1.0(c) uses the term “firm” to denote “a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization.” See La. Rules of Prof’l Conduct R. 1.0(c) (2004). While the term “firm” has an obvious meaning in the context of traditional law partnerships and law corporations, its meaning in looser associations is less clear. For example, the Restatement suggests that lawyers who “share office facilities without reasonable adequate measures to protect confidential client information” may be considered “affiliated lawyers” for purposes of imputation of conflicts of interest. See Restatement (Third) of the Law Governing Lawyers § 123(3) (2000).

Indigent defender boards in Louisiana generally are “treated . . . as the equivalent of private law firms.” State v. Garcia, 108 So. 3d 1, 38 (La. 2012), cert. denied, 133 S. Ct. 2863 (U.S. 2013); State v. Connolly, 930 So. 2d 951, 955 n.1 (La. 2006); State v. McNeal, 594 So. 2d 876 (La. 1992). However, whether conflicts are imputed among independent contractors engaged by an indigent defender board is a question of fact that turns on all of the relevant facts and circumstances. See Garcia, 108 So. 3d at 1.

Interfirm Mobility and Imputed Conflicts

When a new lawyer (“New Lawyer”) joins a firm (“New Firm”), and New Lawyer, while at another firm (“Old Firm”), personally represented a client (“Former Client”), that client–Former Client–is the lawyer’s “former client.” Rule 1.9(a) prohibits the lawyer from undertaking a representation for a new client (“New Client”) that is adverse to Former Client in a substantially-related matter, and Louisiana Rule 1.10(a) imputes this conflict to everyone at New Firm. See La. Rules of Prof’l Conduct R. 1.9(a) (2004); id. R. 1.10(a).[1] However, if New Lawyer did not personally represent another client of Old Firm (i.e., that client was represented by another lawyer at Old Firm), that client is not considered to be New Lawyer’s “former client,” and there would be no conflict under Rule 1.9(a). Whether New Lawyer (or any other lawyer at New Firm) can represent New Client against the client of Old Firm turns on whether New Lawyer acquired confidential information that is “material to the matter” while at Old Firm. See id. R. 1.9(b). If New Lawyer neither represented the client at Old Firm nor acquired confidential information (sometimes called “water-cooler knowledge”) while at Old Firm, New Firm can be adverse to that client. See Willis v. TRC Companies, Inc., 2006 WL 2803058 at *6 (W.D. La. Sep. 28, 2006); Kennedy v. Mindprint, 08-20398 (5th Cir. Oct. 30, 2009).

When a lawyer (“Departing Lawyer”) leaves a firm (“Abandoned Firm”) and takes clients (“Departed Clients”), Abandoned Firm may sue Departed Clients in unrelated matters. Furthermore, Abandoned Firm may sue Departed Clients in substantially-related matters as long as no lawyers remaining at Abandoned Firm have confidential information that is “material to the matter.” See id. R. 1.10(b).

The ABA has issued a formal opinion suggesting that a lawyer may reveal otherwise confidential information to evaluate conflicts associated with interfirm mobility. See ABA Formal Opinion 09-455 (Oct. 8, 2009). According to the ABA:

When a lawyer moves between law firms, both the moving lawyer and the prospective new firm have a duty to detect and resolve conflicts of interest. Although Rule 1.6(a) generally protects conflicts information . . . disclosure of conflicts information during the process of lawyers moving between firms is ordinarily permissible, subject to limitations. Any disclosure of conflicts information should be no greater than reasonably necessary to accomplish the purpose of detecting and resolving conflicts and must not compromise the attorney-client privilege or otherwise prejudice a client or former client . . . .

Id.

Screening to Avoid Imputation of Conflicts?

Some jurisdictions, the Restatement and ABA Model Rule 1.10(a)(2), permit a law firm to avoid imputation of a conflict of interest by screening a disqualified lawyer from the other lawyers in the firm. See Restatement (Third) of the Law Governing Lawyers § 124 (2000). However, the Louisiana Rules of Professional Conduct do not offer screening as a means of avoiding or removing imputation. (Although Louisiana does permit screening in the context of successive government and private employment. See Louisiana R. 1.11.) Likewise, federal district courts in Louisiana, and the Fifth Circuit, have refused to allow the use of “Chinese Walls” or “Screens” to avoid imputed disqualification. See, e.g., Green v. Admin. of Tulane Educational Fund, No. Civ.A. 97-1869, 1998 WL 61041 (E.D. La. Feb. 13, 1998). Although one Louisiana appellate court has suggested that a “cone of silence” constructed around a disqualified lawyer may resolve a conflict, see Petrovich v. Petrovich, 556 So. 2d 281, 282 (La. Ct. App. 4th Cir. 1990), cert. denied, 559 So. 2d 1377 (La. 1990), this opinion is inconsistent with the express language of the Louisiana Rules of Professional Conduct.

Disciplinary Sanctions

For the disciplinary sanctions that are appropriate for a lawyer’s failure to avoid conflicts of interest, see supra Annotations to Louisiana Rule 1.7.

Notes

This page was updated on July 30, 2013.

 

 



[1] In contrast to the Louisiana Rule, ABA Model R. 1.10(a)(2) (2009) permits New Firm to use screening to avoid imputation of New Lawyer’s conflict to other members of New Firm.

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