Traditionally, a lawyer joined a law firm immediately after law school graduation and retired from that firm after a long career. This, of course, is no longer true. Several recent developments in rule making, ethics opinions and case law reflect a trend toward promoting the lawyer interfirm mobility that has become a modern reality.
First, the ABA recently amended Model Rule 1.10 to prevent the imputation of former-client conflicts arising under Model Rule 1.9(a) and Model Rule 1.9(b) to members of the disqualified lawyer’s firm under certain circumstances. Namely, no conflict is imputed when: (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).
Second, the ABA Committee on Professional Responsibility recently issued Formal Opinion 09-455, which permits the disclosure of otherwise confidential information to permit a lawyer and a potential new firm to evaluate the nature and existence of conflicts associated with the lawyer’s proposed move. The opinion notes that “disclosure of conflicts information during the process of lawyers moving between firms is ordinarily permissible,” but that the disclosure of confidential information should only occur after the lawyer and the firm “have engaged in substantive discussions regarding a possible new association” and the disclosure is limited solely to detecting conflicts. See ABA Formal Opinion 09-455 (Oct. 8, 2009).
Finally, the U.S. Fifth Circuit Court of Appeals recently held in Kennedy v Mindprint, that a lawyer who joins a new firm is not disqualified from being adverse to a client of the lawyer’s prior firm if: (1) the lawyer did not personally represent the client while at the prior firm; and, (2) the lawyer learned no confidential information relevant to the matter while at the prior firm. See Kennedy v. Mindprint, 08-20398 at 11-13 (5th Cir. Oct. 30, 2009).
It remains to be seen whether these recent developments will affect the mobility of Louisiana lawyers. The LSBA Rules of Professional Conduct Committee will consider whether to recommend adoption of Model Rule 1.10 at its next meeting (likely in January 2010). All comments and suggestions in this regard are welcome and will be shared with the committee (please post below).