Must a law firm withdraw when it hires the attorney who filed the case for the opposing party?

Plain-English summary

The Committee was asked whether a conflict of interest requires a firm to withdraw where it represents a defendant in an action that the plaintiff's attorney had filed before joining the defendant's firm. On the facts, Attorney A, a legal-aid lawyer in a rural community, had been retained by the plaintiff in a divorce with a child-custody issue, consulted with the plaintiff, prepared documents, and initiated the action; before trial he left legal aid and became the only resident attorney-employee of the partnership Y & Z, which the defendant had retained. The Committee was asked to assume Attorney A would not disclose or use the plaintiff's confidences.

The opinion concluded the firm Y & Z must withdraw. It recognized that a decision to withdraw should rest on compelling circumstances (EC 2-32), but that withdrawal is required where continued employment will result in violating a disciplinary rule (DR 2-110(B)(2)), with reasonable steps taken to avoid prejudice to the client. The primary consideration was the appearance of impropriety in the custody case. Attorney A could not personally represent the defendant, since that would breach his duty to preserve the plaintiff's confidences and secrets under Canons 4 and 9 (as set out in Opinion 75-2, quoting ABA Opinion 165). The opinion acknowledged the hardship, given that Y & Z was the only firm in the community, so the defendant might have to retain counsel hundreds of miles away, and the implications for attorney mobility in rural Alaska.

Notwithstanding those concerns, the opinion determined that continued representation by Y & Z would create an irresistible appearance of disclosure of the plaintiff's confidences, prohibited by the combination of Canons 4 and 9. It relied on ABA Formal Opinion 33 (a partner may not accept litigation against a former client of another firm lawyer even if not a partner at the time of the prior litigation), ABA Informal Decision C-493 (what the bar and public may think was learned also matters), and the Alaska Supreme Court's decision in Aleut Corp. v. McGarvey (an attorney may not represent a third party against a former client where there is a substantial possibility that earlier-gained knowledge could be used against the former client, or the matters are substantially related, and where one firm member is disqualified all are).

Currency note

This opinion was issued in 1978, before the Alaska Bar Association's adoption of the Alaska Rules of Professional Conduct (it applies the former Code of Professional Responsibility) and before the 2009 revisions to those rules. It was later distinguished by Opinion 83-5, which applied a functional analysis to a similar lateral-hire situation, and the modern rules treat lateral-hire screening differently. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or screening standard mentioned here.

Common questions

Q: Must a firm withdraw if it hires the lawyer who filed the case for the other side?

A: On these facts, the opinion concluded the firm must withdraw, because continued representation would create an irresistible appearance that the former client's confidences had been disclosed.

Q: Did it matter that the lateral attorney promised not to disclose confidences?

A: The opinion concluded that even assuming no disclosure, the appearance of disclosure prohibited by Canons 4 and 9, together with the imputation rule, required the firm to withdraw.

Q: Is the whole firm disqualified, or just the lateral attorney?

A: The opinion concluded the disqualification extends to the firm, citing the rule that where one firm member is disqualified all are (Aleut Corp. v. McGarvey; ABA Formal Opinion 33).

Background and rules framework

The opinion applied the former Code's mandatory-withdrawal rule (DR 2-110(B)(2), with EC 2-32) and the confidentiality and appearance-of-impropriety canons (Canons 4 and 9), subjects now treated by Model Rules 1.9 (former clients) and 1.10 (imputation). It relied on Opinion 75-2, ABA Opinion 165, ABA Formal Opinion 33, ABA Informal Decision C-493, and Aleut Corp. v. McGarvey. This opinion was later distinguished by Opinion 83-5.

Citations and references

Rules of Professional Conduct (former Code; cf. Model Rules):

• DR 2-110(B)(2), EC 2-32 (mandatory withdrawal; compelling circumstances)
• Canon 4, Canon 9 (confidences and secrets; appearance of impropriety) (cf. Model Rules 1.9, 1.10)

Cases:

• Aleut Corp. v. McGarvey, 573 P.2d 473 (Alaska 1978), substantial-relationship test and firm-wide disqualification

Other opinions cited:

• Alaska Ethics Opinion 75-2; ABA Opinion 165; ABA Formal Opinion 33; ABA Informal Decision C-493

See also

• Alaska Ethics Op. 83-5: Disqualification After a Lateral Hire
• Alaska Ethics Op. 84-2: Partnership Lawyer Against a Former Partner
• Alaska Ethics Op. 79-4: Legal-Services Board Review and Conflicts
• RI EAP Op. 2010-03: Law Partner's Rule 1.9 Conflict From Deposing the Plaintiff at a Former Firm Is Curable Under Rule 1.10(c) by Screening and Notice

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/78-3.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinion No. 78-3
Is there a Conflict of Interest if a Law Firm Represents a Defendant in an Action Filed on Behalf of a Plaintiff by an Attorney Who, Before Trial, Joined the Defendant's Law Firm? The Committee has been asked the following question: Is there a conflict of interest if a law firm represents a defendant in an action filed on behalf of a plaintiff by an attorney that, before trial, joined the defendant's law firm? It is our understanding that the facts are these: Attorney A, an employee of Alaska Legal Services Corporation in a certain rural community, was retained by the plaintiff in an action for divorce, which also contained an issue of child custody. Attorney A consulted with the plaintiff, prepared the necessary documents, and initiated the action for divorce, and proceedings to secure custody of the children for the plaintiff. Prior to trial, Attorney A terminates his employment with Alaska Legal Services Corporation, and becomes an employee of the partnership of Y & Z, attorneys. The defendant had previously retained the firm of Y & Z as counsel. The partnership of Y & Z maintains an office in that same community, but it is our understanding that Y & Z are themselves only present part of the time. Attorney A is the only attorney employee in the partnership in the subject community. We have been asked to assume that Attorney A does not disclose or otherwise take advantage of any confidential communication to which he may be privy as a result of his previous representation of the plaintiff. In this factual situation, is the firm of Y & Z required to withdraw from the representation of the defendant? The Code of Professional Responsibility properly counsels that the ". . . decision by a lawyer to withdraw should be made only on the basis of compelling circumstances. . .". EC 2-32. However, an attorney is required to withdraw from employment, after proper compliance with the rules of the court, when "he knows or it is obvious that his continued employment will result in violation of a disciplinary rule." DR 2-110 (B)(2). If a lawyer is required to withdraw from employment, he is required to take all reasonable steps to avoid foreseeable prejudice to the rights of his client. DR 2-40 (a)(2). The primary ethical consideration which presents itself in this matter is whether the employment of Attorney A by Y & Z creates an appearance of impropriety in the subject child custody case.

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It is clear that Attorney A could not personally undertake the representation of the defendant, for such representation would present a specific breach of his duty to preserve the confidences and secrets of plaintiff under Canons 4 and 9 as set out in our Opinion 75-2, (App. by Bd. of Gov. October, 17, 1975). In that prior opinion we quoted from ABA Opinion 165, August 23, 1936, which interpreted former Canon 6 as preventing acceptance of professional employment against a former client:
. . . which will or even may require him to use confidential information obtained by the attorney in the course of [such former employment]. (emphasis in the original)

The question of whether or not the firm of attorneys, Y & Z, by whom Attorney A is now employed is disqualified, was, no doubt, posed because of the hardship to defendant, particularly as Y & Z is the only law firm in the community so that he or she must now retain counsel from the next nearest city which may be hundreds of miles distant. The question also raises implications regarding the mobility of attorneys in Alaska, particularly in communities in rural Alaska, where the prospect of such possible conflicts is high. Notwithstanding these legitimate and somewhat unique concerns, the Committee is impelled to determine that the firm of Y & Z must withdraw from the subject litigation. The continued representation of defendant by the firm Y & Z would create an irresistible appearance of disclosure by Attorney A of the confidences and secrets of plaintiff as prohibited by a combination of Canons 4 and 9. It is well settled that an attorney may not accept litigation against a past client if such requires that the attorney contest the same issue for which he previously was an advocate in the prior litigation. Nor may a partner of such attorney accept such litigation even though he was not a partner at the time of the prior litigation. ABA Formal Opinion 33.

A similar result was reached in ABA Informal Decision C-493 (November 22, 1961) in which the Committee stated:
[The former] Canon 6 also is designed to make it unethical to divulge confidences in situations where there may be conflict of interests between clients. This has been interpreted to prevent a lawyer from representing a client when there has been prior disclosure of confidences to himself or another member of his firm by a person who has an adverse interest to the proposed client in the litigation which the client proposes to undertake.

It is also true that it is not what the lawyer may have learned in the previous lawyer-client relationship but what others, the bar and the public, may have thought was learned that prevents assuming a new lawyer-client relationship with a former opponent.

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The Alaska Supreme Court in Aleut Corp. v. McGarvey, 573 P.2d 473 (Alaska 1978), has confirmed this position, holding We believe that an attorney may not represent a third party against a former client where there exists a substantial possibility that knowledge gained by him in the earlier professional relationship can be used against the former client, or where the subject matter of his present undertaking has a substantial relationship to that of his prior representation.

It is well established that where one member of a firm is disqualified from representing a client all are.

Charles P. Flynn, Chairman, Ethics Committee
Adopted by the Board of Governors on December 2, 1978.

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