When a lawyer moves firms, can he work against a client his old firm once considered, if he personally never learned anything about that client?

Plain-English summary

A lawyer had been an associate at a firm where another (now partner) investigated a plaintiff's case and then declined it; the inquiring lawyer never had any involvement in the case and never saw or touched the file, and no suit was ever filed. After leaving that firm and opening a practice with another attorney, the defendant's lawyer died and the attorney sharing the lawyer's building took over the defense, asking the lawyer to work on the file, with the client's agreement. The lawyer asked whether he could work for the defendants without violating any ethical rules.

The Disciplinary Commission answered that he may participate in representing the defendants, even though a partner at his former firm once reviewed the plaintiff's file and declined the case. The opinion explained the problem is governed by the interplay of Rules 1.9 and 1.10, and treated the co-counsel arrangement as employment by the other attorney rather than by the client. The general rule is that when a lawyer switches firms, he must have actual knowledge about a former client before there is any disqualification or imputed disqualification in representing a party adverse to that former client. Because, at his old firm, the lawyer neither represented the client nor gained any specific knowledge about the client, he carries no disqualifying knowledge.

The opinion quoted the Comment to Rule 1.10, which provides that paragraphs (b) and (c) disqualify the firm only when the lawyer involved has actual knowledge of information protected by Rules 1.6 and 1.9(b); so a lawyer who acquired no information relating to a particular client while at one firm, and later joins another firm, does not disqualify himself or the second firm from representing another client in the same or a related matter even if the two clients' interests conflict. Under that standard, a "moving" lawyer is deemed to carry only his actual knowledge, and there was nothing to prevent this lawyer from representing the defendant and no former-client conflict to impute to his co-counsel.

Currency note

This opinion was issued in 1993, before the 2002 Ethics 2000 revisions to the ABA Model Rules of Professional Conduct and Alabama's subsequent amendments to its Rules of Professional Conduct. 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: If a lawyer switches firms, can he work against a client his old firm once considered representing?

A: Per the opinion, yes, if he never gained actual knowledge of protected information about that client; disqualification on moving firms turns on the lawyer's actual knowledge.

Q: What is the standard for imputed disqualification when a lawyer moves firms?

A: The opinion applied Rules 1.9 and 1.10: a moving lawyer is deemed to carry only his actual knowledge, and the firm is disqualified only where the lawyer has actual knowledge of information protected by Rules 1.6 and 1.9(b).

Q: Is the co-counsel disqualified by the lawyer's past firm association?

A: No. The opinion concluded there is no former-client conflict to impute to the co-counsel, because the lawyer carried no disqualifying knowledge.

Background and rules framework

The opinion interprets Rule 1.9 (Model Rule 1.9, duties to former clients) and Rule 1.10 (Model Rule 1.10, imputation of conflicts within a firm and its Comment on lateral movement) of the Alabama Rules of Professional Conduct, applying the actual-knowledge standard for a lawyer who changes firms.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 / Ala. R. Prof. C. 1.9 (duties to former clients)
• Model Rule 1.10 / Ala. R. Prof. C. 1.10 (imputed disqualification; actual knowledge of protected information)

See also

• AL Ethics Op. 1991-06: required notice to client when an attorney leaves a firm
• AL Ethics Op. 1993-23: bankrolling a referral-front firm
• RI EAP Op. 2012-07: A Former Legal-Services Supervising Attorney Is Barred Under Rule 1.9(b) Only Where He Actually Acquired Protected Material Information About a Supervised Case

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1993-03/
• Original PDF: https://www.alabar.org/assets/2019/02/RO-93-03.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS OPINION

RO-93-03

QUESTION:

"For several years I was an associate at a local law firm. During that time a plaintiff brought a case to the firm. A now partner in the firm investigated the case thoroughly, and after doing so, declined to take the case. I never had any involvement in the case nor did I ever see or touch the actual file. No suit was ever filed, from what I understand. After I left the firm, I opened a practice in a building with another attorney. Recently, the defendants' attorney died, and the attorney in my building will be handling the case for the defendants. This attorney has asked me to also work on the file, and the client is in agreement. My question is, can I work for the defendants without violating any ethical rules?"

ANSWER:

Yes, you may participate in the representation of the defendants, even though a partner at your former law firm once reviewed the plaintiff's file and declined the case.

DISCUSSION:

The problem you raise is covered by the interplay of Rules 1.9 and 1.10. The Disciplinary Commission is likening your co-counseling arrangement with the other attorney to be employment by him rather than the client. The general rule is that when a lawyer switches firms he or she must have actual knowledge about a former client before there is any disqualification or imputed disqualification in representing a party adverse to the former client. While at your "old" firm, you neither represented the client nor gained any specific knowledge about the client according to your factual statement.

The Comment to Rule 1.10, Rules of Professional Conduct states:

"Paragraphs (b) and (c) operate to disqualify the firm only when the lawyer involved has actual knowledge of information protected by Rules 1.6 and 1.9(b). Thus, if a lawyer while with one firm acquired no knowledge of information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict." (emphasis added)

Thus, under the Alabama Rules of Professional Conduct, a "moving" lawyer is only deemed to carry actual knowledge along with him/her. The new firm's situation is subject to that actual knowledge. Here, there is nothing that prevents you individually from representing this defendant. There is also no former client conflict to impute to your co-counsel.

MLM/vf

2/25/93