Must a law firm be disqualified because it hired an associate who had worked substantially on the same case at the opposing party's firm?

Plain-English summary

The Committee was asked whether a firm representing a defendant in a contract action was disqualified because it hired an associate, Attorney A, who had previously been an associate at the firm representing the plaintiff. While at the plaintiff's firm, Attorney A had participated substantially in pretrial motion and discovery, though he was not lead counsel; he then moved to the defendant's three-lawyer firm and committed not to disclose confidences or discuss the case. The firms were in an isolated Alaskan community of about 25 lawyers, and the defendant had already spent over $25,000 in defense costs.

The opinion distinguished its earlier Opinion 78-3 (which disqualified a small partnership on appearance-of-impropriety grounds, citing ABA Formal Opinion 33, Informal Decision C-493, and Aleut Corp. v. McGarvey), reasoning that per se disqualification was not mandated here because screening Attorney A was arguably possible. It drew on the then-new ABA Model Rule 1.10 and its commentary, which favor a functional analysis over either the fiction that a firm is a single lawyer or the open-ended "appearance of impropriety" of Canon 9. That analysis turns on two functions: preserving confidentiality (a question of the lawyer's actual access to information, judged by experience, division of responsibility, firm structure, sensitivity of the information, and the effectiveness of screening, with the burden on the lawyer whose disqualification is sought) and avoiding positions adverse to a former client in substantially related matters (governed by Rule 1.9 and not automatically imputed). The opinion noted that Alaska's imputed-disqualification rule (DR 5-105(D)) is narrower than the ABA's, and that EC 9-6 directs attorneys to avoid even the appearance of impropriety.

Applying these considerations, the opinion concluded the defendant's firm should be disqualified. Attorney A had developed a thorough understanding of the facts and the plaintiff's legal theories; the plaintiff and its firm objected; the firm had only three lawyers, so screening was not as viable as in a larger, departmentalized firm; and the switch presented an appearance of impropriety, an attorney who had substantially represented one side moving to the firm on the other side of a substantial case. The opinion expressly limited itself to the narrow facts and did not address whether severing Attorney A's employment would cure the problem.

Currency note

This opinion was issued in 1983, before the Alaska Bar Association's adoption of the Alaska Rules of Professional Conduct (it applies the former Code of Professional Responsibility while drawing on the then-new ABA Model Rules) and before the 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis, including the modern treatment of lateral-hire screening. 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: Is a firm automatically disqualified when it hires a lawyer from the opposing party's firm?

A: The opinion rejected automatic per se disqualification, applying instead a functional analysis of the lateral lawyer's actual access to confidences and whether the matters are substantially related.

Q: Why was the firm disqualified on these facts?

A: The opinion concluded the lateral associate had participated substantially in the same case for the other side, the three-lawyer firm could not effectively screen him, and the switch created an appearance of impropriety.

Q: Who bears the burden on the screening question?

A: The opinion stated that, in determining the likelihood of actual access to a client's information, the burden of proof rests on the lawyer whose disqualification is sought.

Background and rules framework

The opinion applied the former Code's imputed-disqualification rule (DR 5-105(D)) and appearance-of-impropriety principle (EC 9-6, Canon 9), but drew its functional framework from the then-new ABA Model Rule 1.10 (imputation of conflicts) and Model Rule 1.9 (duties to former clients), which separate the confidentiality inquiry from the adverse-position inquiry. It noted Alaska's narrower imputation rule and relied on Aleut Corp. v. McGarvey.

Citations and references

Rules of Professional Conduct (former Code and Model Rules):

• DR 5-105(D) (Alaska's imputed disqualification, narrower than ABA's)
• EC 9-6, Canon 9 (appearance of impropriety)
• Model Rule 1.10 and commentary (imputation; functional analysis); Model Rule 1.9 (former clients); Model Rule 1.6 (confidentiality)

Cases:

• Aleut Corp. v. McGarvey, 573 P.2d 473 (Alaska 1978), imputed disqualification of firm members

Other opinions cited:

• Alaska Ethics Opinion 78-3 (small-partnership disqualification, distinguished); ABA Formal Opinion 33; ABA Informal Decision C-493

See also

• Alaska Ethics Op. 85-3: Firm Calling a Former Associate as a Witness
• Alaska Ethics Op. 84-2: Partnership Lawyer Against a Former Partner
• Alaska Ethics Op. 95-2: Former Government Employee 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/83-5.pdf

Original opinion text

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

Ethics Opinion No. 83-5
Whether a Law Firm Representing a Defendant is Disqualified From
Further Representation Because it Hired an Associate Formerly Employed
by the Law Firm Representing the Plaintiff.
The Committee has been asked to determine whether a law firm,
representing a defendant in a contract action, is disqualified from further
representation because it hired an associate formerly employed by the law firm
representing the plaintiff. Under the facts as presented, it is our conclusion
that the law firm representing the defendant is disqualified from further
representation.
Attorney A was originally employed as an associate of the X law firm.
During the time in which Attorney A was an associate of X, X was retained by
plaintiff to prosecute a contract action against defendant. Although Attorney A
was not the attorney in charge of the case, Attorney A participated to a
substantial extent in pre-trial motion and discovery procedures.
Defendant retained Y law firm as its attorneys. Subsequent to
substantial pretrial discovery and motion practice, Attorney A terminated his
employment with X law firm and accepted employment with Y law firm as an
associate. At the time Attorney A accepted the position with Y, the Y law firm
had accomplished a very substantial amount of work in the case. The
defendant had expended in excess of $25,000.00 in defense costs. If new
counsel is substituted, defendant will be prejudiced in at least increased
defense costs, as a new counsel is required to develop the expertise necessary
in the case.
Attorney A has committed to X law firm and the plaintiff that he will not
disclose or otherwise take advantage of any confidential communication to
which he may have been privy as a result of his employment with X law firm,
and has not and will not discuss the case with any members of Y law firm nor
participate in the case in any way.
The law firms involved are located in an isolated Alaskan community
containing approximately 25 attorneys in private law practice. These attorneys
are organized into several law firms of from 2 to 5 attorneys, with the
remaining attorneys being solo practitioners. The Y law firm, representing
defendant, consists of three attorneys, including Attorney A.
A similar situation with a relevant difference, was presented to the
Alaska Bar Association in Ethics Opinion 78-3 adopted by the Board of
Governors on December 2, 1978. In opinion 78-3, an attorney employee of
Alaska Legal Services Corp. which represented a plaintiff in a divorce and child
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custody case, terminated his employment with Alaska Legal Services and
became an employee of a two-attorney partnership which represented the
defendant. This took place in a rural community. While the two-attorney
partnership maintained an office in that community, the two partners were not
resident there and were present only part of the time. Thus, the employed
attorney was the only representative of the partnership in the community on a
regular basis. The employed attorney would, of necessity, become involved in
the actual dealings with the defendant and the handling of the case.
Under these facts, Opinion 78-3 concluded that the partnership must be
disqualified from representing the defendant because an appearance of
impropriety had been created. In reaching this conclusion, Opinion 78-3 cites
American Bar Association Formal Opinion No. 33 and Informal Decision No. C493. It also cites Aleut Corp. v. McGarvey, 573 P.2d 473 (Alaska 1978), which,
in dealing with a situation involving a partner rather than an associate as here,
states that where one member of a firm is disqualified from representing a
client, all members are. (See endnote 1)
The rule of Opinion 78-3 does not govern this situation, nor is per se
disqualification mandated. Unlike the attorney in Opinion No. 78-3, it is
arguably possible to screen Attorney A from participation in the case.
Additionally, the American Bar Association has provided recent, relevant
guidance in this area of ethical concern.
Rule 1.10 of the American Bar Association Model Rules of Professional
Conduct, and the commentary, provide guidance in this type of case. Rule 1.10
is a general rule dealing with imputed disqualification, and provides:
(a) When lawyers are associated in a firm, none of them shall knowingly represent
a client when any one of them practicing alone would be prohibited from doing so
by Rules 1.7, 1.8(c), 1.9 and 2.2.
(b) When lawyers terminate an association in a firm, none of them, nor any other
lawyer with whom any of them subsequently becomes associated, shall
knowingly represent a client when doing so involves a material risk of violating
Rule 1.6 or Rule 1.9.
The commentary points out that the rule of imputed disqualification
stated in paragraph (a) gives effect to the principle of loyalty to the client as it
applies to lawyers who practice in a law firm. Such a situation can be
considered from the premise that a firm of lawyers is essentially one lawyer for
the purpose of the rules governing loyalty to the client, or from the premise
that each lawyer is vicariously bound by the obligation of loyalty owed by each
lawyer with whom the lawyer is associated.

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Paragraph (b) deals with the situation where lawyers have been
associated in a firm, but then end their association. In this situation, the
problem is more complicated, and the fiction that the law firm is the same as
single lawyer is no longer wholly realistic. There are several competing
considerations. First, the client previously represented must be reasonably
assured that the principle of loyalty to the client is not compromised. Second,
the rule of disqualification should not be so broadly cast as to preclude other
persons from having reasonable choice of legal counsel. Third, the rule of
disqualification should not unreasonably hamper lawyers from forming new
associations and taking on new clients after having left the previous
association. In this connection, it should be recognized that today, and in
Alaska, many lawyers practice in firms, many to some degree limit their
practice to one field or another, and many move from one association to
another several times in their careers. If the concept of imputed disqualification
were defined with unqualified rigor, the result would be radical curtailment of
the opportunity of lawyers to move from one practice setting to another and of
the opportunity of clients to change counsel.
Reconciliation of these competing principles in the past has been
attempted under two rubrics. One approach has been to seek per se rules of
disqualification. For example, it has been held that a partner in a law firm is
conclusively presumed to have access to all confidences concerning all clients
of the firm. Under this analysis, if a lawyer has been a partner in one law firm
and then becomes a partner in another law firm, there is a presumption that
all confidences known by a partner in the first firm are known to all partners in
the second firm. This presumption might properly be applied in some
circumstances, especially where the client has been extensively represented,
but may be unrealistic where the client was represented only for limited
purposes. Furthermore, such a rigid rule exaggerates the difference between a
partner and an associate in modern law firms, and does not address
associations other than law firms; for example, lawyers associated in the law
department of a government agency.
The other rubric formerly used for dealing with vicarious disqualification
is the appearance of impropriety proscribed in Canon 9 of the ABA Model Code
of Professional Responsibility. This rubric has a twofold problem. First, the
appearance of impropriety can be taken to include any new client-lawyer
relationship that might make a former client feel anxious. If that meaning were
adopted, disqualification would become little more than a question of subjective
judgment by the former client. Second, since "impropriety" is undefined, the
term "appearance of impropriety" is question-begging. It, therefore, has to be
recognized that the problem of imputed disqualification cannot be properly
resolved either by simple analogy to a lawyer practicing alone or by the very
general concept of appearance of impropriety.
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A rule based on a functional analysis is more appropriate for determining
the question of vicarious disqualification. Two functions are involved:
preserving confidentiality and avoiding positions adverse to a client.
Confidentiality
Preserving confidentiality is a question of access to information. Access
to information, in turn, is essentially a question of fact in particular
circumstances, aided by inferences, deductions or working presumptions that
reasonably may be made about the way in which lawyers work together. A
lawyer may have general access to files of all clients of a law firm and may
regularly participate in discussions of their affairs. It should be inferred that
such a lawyer in fact is privy to all information about all the firm's clients. In
contrast, another lawyer may have access to the files of only a limited number
of clients and participate in discussion of the affairs of no other clients. In the
absence of information to the contrary, it should be inferred that such a lawyer
in fact is privy to information about the clients actually served but not those of
other clients.
Relevant factors in determining the likelihood of actual access to
information relating to representation of a client include the professional
experience of the lawyer in question, the division of actual responsibility for the
matters involved, the organizational structure of the law firm or other
association involved, the sensitivity of the information and its relevance to the
affairs of the affected clients, and the nature and probable effectiveness of
screening measures. Application of this Rule can, therefore, depend on a
situation's particular facts. In any such inquiry, the burden of proof should
rest upon the lawyer whose disqualification is sought.
Independent of the question of disqualification a lawyer changing
professional association has a continuing duty to preserve confidentiality of
information about a client formerly represented.
Adverse Positions
The second aspect of loyalty to the client is the lawyer's obligation to
decline subsequent representations involving positions adverse to a former
client arising in substantially related matters. This obligation requires
abstention from adverse representation by the individual lawyer involved, but
does not properly entail abstention of other lawyers through imputed
disqualification. Hence, this aspect of the problem is governed by Rule
1.9(a).(See endnote 2) Thus, if a lawyer left one firm for another, the new
affiliation would not preclude the firms involved from continuing to represent
clients with adverse interests in the same or related matters, so long as the
requirements of Rule 1.10(b) concerning confidentiality have been met.
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In addition, EC 9-6 of the Alaska Code of Professional Responsibility
requires all attorneys to conduct themselves so as to reflect credit on the legal
profession and to inspire the confidence, respect, and trust of the clients and of
the public, and to strive to avoid not only professional impropriety but also the
appearance of impropriety.
Considering the particulars of this case in regard to EC 9-6 and guidance
set forth in the American Bar Association Model Rules of Professional Conduct,
it is the opinion of the Committee that the Y law firm should be disqualified
from continuing to represent the defendant. Attorney A, prior to his change of
employment, participated substantially in pretrial motion and discovery
proceedings, thereby developing, of necessity, a thorough understanding of the
facts of the case and the plaintiff's legal theories. Plaintiff, and X law firm,
apparently object to Y law firm's continued participation. Y law firm consists of
only three attorneys, including Attorney A. Thus, the possibility of screening
Attorney A from the case is not as viable a possibility as it might be in a larger,
departmentalized firm. Finally, as a general observation, this situation would
present an appearance of impropriety to the public and the client involved as
plaintiff. Basically, the appearance presented is that an attorney who engaged
in substantial representation of the client and learned a lot about the client's
case, has now switched allegiances to a firm which represents the opposing
party in a substantial case. While there may not be any actual impropriety, and
while the Committee accepts Attorney A's assurances that confidentiality will
be maintained, there is a sufficient appearance of impropriety in this case such
that Y law firm should be disqualified from further representation of the
defendant in this case.
Please note: This opinion is limited to the narrow factual situation of this
particular case. Our advice was not requested on whether the ethical questions
discussed above could be cured by severing the employment of Attorney A from
Y law firm.
Approved by the Board of Governors on August 27, 1983.
Endnotes:
Endnote 1:
The Alaska rule regarding imputed disqualification of a member of the firm of a
disqualified attorney is narrower than the ABA rule. ABA Code DR 5-105(D)
provides:
If a lawyer is required to decline or to withdraw from employment under a
Disciplinary Rule, no partner, or associate, or affiliate with him or his firm,
may accept or continue such employment.
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Alaska, on the other hand, does not provide for imputed disqualification based
on any disciplinary rule, but only on Alaska DR 5-105 itself. Hence, the
"appearance of impropriety" of Alaska Canon 9 does not cause an imputed
disqualification under the terms of Alaska DR 5-105(D).
Endnote 2:
Rule 1.9 provides:
Conflict of Interest: Former Client
A lawyer who has represented a client in a matter shall not thereafter:
(a) represent another client in the same or a substantially related matter in
which that client's interests are materially adverse to the interests of their
former client unless the former client consents after disclosure consultation;
or
(b) use information relating to the representation to the disadvantage of the
former client except as Rule 1.6 would permit with respect to a client or
when the information has become generally known.

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