By Ellen C. Brotman and Lynn Marietta Nichols
The summer is ending, the birds are flying south. Partners and associates are also considering whether it’s time to leave the nest and migrate to greener pastures. Lawyers no longer join law firms to stay until retirement. Government lawyers also move in and out of private practice, often as the political winds shift. But lawyers are not just employees changing companies; their duties to clients are always the paramount concern. As we like to say: “there’s a rule for that!” The Rules of Professional Conduct provide guidance on how to make a move, protect your client and avoid conflicts.
There are many ethical issues for the departing lawyer and both the new and old firms. For instance, how does the new firm perform a conflicts check without disclosing client confidences? Who gets to keep the clients? Who has a duty to communicate the lawyer’s departure to the client and what are the best practices for doing so? If conflicts exist, can they be dealt with in a way to prevent imputation to the new firm? Professional Rules of Conduct 1.6, 1.9, 1.10 and 1.11 are all implicated in a lateral move:
- First, any lateral move starts with a conflicts check by the new firm. Rule 1.6 (7) provides a specific exception from the general prohibition against disclosures of client confidences for this purpose but only if “the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
- Rule 1.7 governs concurrent conflicts. A concurrent conflict may arise if an attorney is interviewing at a firm that represents a party adverse to a current client of the lawyer. The moving lawyer must decide whether his desire to move to the firm representing his client’s adversary may create “a significant risk that the representation of one or more clients will be materially limited by … a personal interest of the lawyer.”
- Rule 1.9 addresses the responsibility that a lawyer has to former clients. Rule 1.9(b) prohibits the representation of a person “in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client whose interests are materially adverse to that person; and about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent.” The term “same or substantially related matter” has been the subject of a great deal of litigation. See Maritrans GP v. Pepper, Hamilton & Scheetz, 529 Pa. 241, 256, 602 A.2d 1277, 1284 (1992) (“Long before the Code of Professional Responsibility was adopted, and before the Rules of Professional Conduct were adopted, the common law recognized that a lawyer could not undertake a representation adverse to a former client in a matter “substantially related” to that in which the lawyer previously had served the client.”); The Restatement (Third) of the Law Governing Lawyers Section 132, states that a “current matter is substantially related to the earlier matter if: the current matter involves the work the lawyer performed for the former client; or there is a substantial risk that representation of the present client will involve the use of information acquired in the course of representing the former client, unless that information has become generally known.”.”); see also Teva Pharmaceuticals USA v. Impax Laboratories, 2018 Pa. Super. Unpub. LEXIS 4113, *10-11 (Pa. Super. Ct. Nov. 2, 2018) (patent infringement cases relating to two different patents are not related under 1.9.)
- Rule 1.10 provides the general rule that goes even further to protect client confidentiality by limiting a law firm’s ability to represent in matters when a lawyer within the firm is individually disqualified from representing a client. When a lawyer moves from one firm to another, Rule of Professional Conduct 10(b) and (c) applies. Rule 1.10(b) states: “when a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, has previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(b) that is material to the matter unless:
-the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and
-written notice is promptly given to the appropriate client to enable it to ascertain compliance with the provisions of this rule.”
Rule 1.10 does not provide specific guidance as to what constitutes an effective screen. When analyzing the effectiveness of an ethics screen, pertinent factors include: the substantiality of the relationship between the attorney and former client; the time lapse between the matters in dispute; the size of the firm and the number of disqualified attorneys; the nature of the disqualified attorney’s involvement; and the timing of the wall. see Dworkin v. General Motors, 906 F. Supp. 273, 279-80 (E.D. Pa. 1995) (citing Maritrans GP v. Pepper, Hamilton & Scheetz, 602 A.2d 1277, 1289 (1992). A list of features of the wall itself should be analyzed, including the following: the prohibition of discussion of sensitive matters, restricted circulation of sensitive documents, restricted access to files, strong firm policy against breach, including sanctions, and physical and/or geographical separation.
The timing of the notice is critical and is best provided before the actual move takes place. The burden of proving compliance with the screening exceptions of Rule 1.10(b) is on the “new” law firm. See James v. Teleflex, (E.D. Pa.). Rule 1.10(d) requires the former client to provide informed consent to the screening; however, there are some instances where the conflict may be so severe that the client’s informed consent will not be able to remove the imputation.
Rule 1.11 governs conflicts of interests for former and current government employees and applies the principles of 1.7, 1.9 and 1.10 to these situations. Notably, a government lawyer cannot negotiate for private employment with a party in a matter in which the lawyer is participating personally and substantially.
While the movement of laterals can present challenges, the move can be accomplished smoothly with cooperation, transparency and communication. For a comprehensive guide to best practices, we recommend starting with a joint ethics Opinion issued in 2007 by the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility and the Philadelphia Bar Association Professional Guidance Committee aptly titled “Ethical Obligations When a Lawyer Changes Firms.” And remember, whether your leaving your first job or a your fifth job, in all the turning points and milestones of your career, remember that there is help available from bar associations, Lawyers Concerned for Lawyers and your fellow colleagues in the profession.
Ellen C. Brotman, of Brotman Law in Philadelphia, represents individuals before licensing boards, providing effective, caring and efficient assistance. She has served as an assistant federal defender in Philadelphia and practiced in small, medium and large firms with a focus on criminal defense, appellate advocacy, professional responsibility and ethics.
Lynn Marietta Nichols has practiced in Philadelphia for more than 20 years. She began her career as a Philadelphia Assistant District Attorney where she served for more than 22 years working her way up through the ranks to becoming a senior supervisor in the homicide trial unit. She is currently expanding her practice to include representing respondents before the Disciplinary Board.
Reprinted with permission from the August 23,, 2021 issue of The Legal Intelligencer. © 2021 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
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