When a lawyer is exploring a job with the firm or party he is opposing in a matter, when must he tell his client and get consent, and does the conflict disqualify his whole firm?

Plain-English summary

The committee addressed the constraints the Model Rules place on a lawyer who explores employment with a law firm or party while representing a client in a matter adverse to that firm or party. It explained that a lawyer's actual move to an opposing firm is governed by Rule 1.9 (and imputed under Rule 1.10), but that the discussions leading up to such a move raise issues under Rule 1.7(b), which bars a representation that may be materially limited by the lawyer's own interests absent consultation and consent. The committee identified the duties a job search can compromise: loyalty and independent judgment, the diligence and promptness required by Rules 1.3 and 3.2, confidentiality under Rule 1.6, and the duty to keep the client informed under Rule 1.4.

On timing, the committee concluded that a lawyer who has an active and material role in representing a client "must consult with and obtain the consent of that client, ordinarily before he participates in a substantive discussion of his experience, clients or business potential or the terms of an association with an opposing firm." It identified two overriding factors: the nature of the lawyer's role in the matter, and whether his interest in the firm is concrete, communicated, and reciprocated. Stray thoughts, reading classified ads, or an unsolicited offer promptly rejected do not trigger the duty. Where the lawyer has only a limited role or limited client contact, the committee said it is ordinarily more appropriate for him to disclose to his supervisor, who can reassign the matter or seek the client's consent. If consent is not obtained, the lawyer may withdraw from the matter under Rule 1.16 where withdrawal can be accomplished without adverse effect on the client.

On imputation, the committee declined to read Rule 1.10 to disqualify the lawyer's whole firm. It reasoned that Rule 1.10's presumption of shared loyalty fits conflicts arising from the firm's representation of clients, not a personal conflict rooted in one lawyer's interest in leaving. So the negotiating lawyer's Rule 1.7(b) conflict need not be imputed to colleagues, although each colleague must separately evaluate whether his own interest in the negotiating lawyer's success (for example, an intent to leave with him) creates a Rule 1.7(b) conflict of his own. The committee added a cautionary note against using the opinion to fuel tactical disqualification motions.

Currency note

This opinion was issued in 1996, before the American Bar Association's adoption of the 2002 (Ethics 2000) revisions to the Model Rules of Professional Conduct, which rewrote Rules 1.7 and 1.10 (including the current treatment of personal-interest conflicts and imputation). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: When does a lawyer have to tell his client he is job-hunting with the opposing firm?

A: The committee concluded that a lawyer with an active and material role in a matter must consult the client and obtain consent ordinarily before participating in a substantive discussion of his experience, clients, business potential, or the terms of an association with the opposing firm.

Q: Does merely thinking about other jobs or getting an unsolicited offer trigger the duty?

A: No. The opinion said stray thoughts, reading ads, giving one's name to a placement service, or promptly rejecting an unsolicited offer do not, without more, require consultation and consent; the interest must be concrete, communicated, and reciprocated.

Q: If the lawyer cannot get consent, what are his options?

A: The committee said he must either discontinue the job search that created the conflict or withdraw from participation in the matter and transfer his work to others in the firm, where withdrawal can be accomplished properly under Rule 1.16.

Q: Is the whole firm disqualified because one lawyer is negotiating with the adversary?

A: No. The committee held that the negotiating lawyer's personal conflict is not automatically imputed under Rule 1.10, though each colleague must evaluate whether his own interest in the negotiations creates a separate Rule 1.7(b) conflict.

Background and rules framework

The opinion interpreted Model Rule 1.7(b) (a representation that may be materially limited by the lawyer's own interests), reading it together with Rule 1.9 and Rule 1.10 (former-client conflicts and their imputation), Rule 1.4 (keeping the client informed), Rule 1.3 and Rule 3.2 (diligence and expediting litigation), Rule 1.6 (confidentiality), and Rule 1.16 (withdrawal). Because the ABA interprets the Model Rules directly, there is no state-rule analogue.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest: general rule; material limitation by the lawyer's own interests)
• MR 1.9 (duties to former clients)
• MR 1.10 (imputation of conflicts of interest)
• MR 1.4 (communication)
• MR 1.16 (declining or terminating representation; withdrawal)

Cases:

• McCafferty v. Musat, 817 P.2d 1039 (Colo. App. 1990), malpractice where a lawyer recommended a low settlement after seeking a job with the opposing firm

Other opinions cited:

• ABA Informal Op. 1457: a lawyer may announce a new association after departure but not solicit the former firm's clients beforehand

See also

• ABA Formal Op. 97-406: Conflicts when a lawyer represents opposing counsel
• ABA Formal Op. 99-414: Ethical obligations when changing firms
• ABA Formal Op. 94-381: Restrictions on a lawyer's right to practice

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: 96-400.pdf