Did a firm remain disqualified after a lawyer with a former-client conflict left it under Arizona Opinion 95-06?

Plain-English summary

A lawyer who had represented an individual in a civil matter joined a firm serving the adverse corporate client. A later dispute was substantially related to the earlier one. The new firm stopped work on that matter after the individual declined a conflict waiver. The question was whether the firm's disqualification persisted when the lawyer departed.

Applying then-current ER 1.10(c), the committee said the firm could represent the corporate client again if no remaining lawyer held material protected information about the individual. It described a rebuttable presumption that lawyers in a firm share client confidences and placed the burden on the firm to prove otherwise.

On the facts supplied, the lawyer brought no files, had disclosed no confidences, and appeared able to give supporting affidavits. The committee therefore found no continuing imputed disqualification, conditioned on the firm's ability to show that no protected information was communicated to its remaining lawyers.

Currency note

This opinion was issued in 1995, before the State Bar of Arizona's adoption of the 2003 revisions to the 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Did the lawyer's departure automatically remove the firm's conflict?

A: No. The firm had to show that none of its remaining lawyers possessed material confidential information from the former client.

Q: Who bore the burden concerning shared confidences?

A: The opinion placed it on the remaining firm and treated the usual presumption of shared information as rebuttable.

Q: Why did the committee think this firm could resume the matter?

A: The inquiry said the lawyer brought no files, disclosed no confidences, and could apparently support those facts with affidavits.

Background and rules framework

The opinion applied Arizona ER 1.10(c) to a firm after a lawyer with a former-client conflict departed, with protected information defined by ERs 1.6 and 1.9(b). It also noted the waiver provision of ER 1.10(d) and ER 1.7; the former client in this case declined waiver.

Citations and references

Rules of Professional Conduct:

• AZ ER 1.10(c), (d): imputed disqualification after departure and waiver
• AZ ER 1.6 and 1.9(b): protected client information
• AZ ER 1.7: waiver conditions referenced by ER 1.10(d)

Cases:

• Novo Terapeutisk Laboratorium A/S v. Baxter Travenol Laboratories, Inc., 607 F.2d 186 (7th Cir. 1979): rebuttable presumption of shared confidences
• Solow v. W.R. Grace & Co., 83 N.Y.2d 303, 632 N.E.2d 437 (3/24/94): evidence against automatic disqualification

See also

• AZ Ethics Op. 01-10: Imputed Disqualification

Source

• Landing page: https://www.azbar.org/for-legal-professionals/ethics/ethics-opinions/?V=Opinions&OpinionId=458
• Official opinion API: https://api.azbar.org/EthicsRules/Opinion/?Id=458

Original opinion text

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

FACTS[1]

From 1987 to 1989, Attorney A was employed as an associate in law Firm 1.  During the period, Attorney A and Law Firm 1 actively represented Individual Client in a civil matter adverse to the interest of Corporate Client.  In 1989, Attorney A left Law Firm 1 and became a Deputy County Attorney.  In 1992, Attorney A joined Law Firm 2 as an associate.  In December 1994, Attorney A left Law Firm 2 and joined Law Firm 3.  Law Firm 2 is, and has been for many years, general counsel to Corporate Client.  Attorney A brought no files with her to Law Firm 2 concerning Individual Client, nor did she ever disclose confidences, work product or other confidential information learned from her representation of Individual Client to any person previously or now with Law Firm 2. 

During Attorney A's employment with Law Firm 2, a dispute arose between Individual Client and Corporate Client which was substantially related to the matter that Attorney A and Law Firm 1 handled.  Law Firm 2 pointed out the conflict and the resultant imputed disqualification issues.  Law Firm 2 requested a waiver, which was not granted by Individual Client.  Law Firm 2 immediately ceased representation of Corporate Client on this particular matter.  After Attorney A resigned from Law Firm 2, Law Firm 1 was advised that the conflict no longer existed.  Law Firm 1 advised Law Firm 2 that the conflict continued for Law Firm 2 even though Attorney A had resigned.

QUESTION PRESENTED

When an attorney with a former affiliation that creates a conflict leaves a firm, does the imputed disqualification of the remaining members of the firm cease?

RELEVANT ETHICAL RULES

ER 1.10  IMPUTED DISQUALIFICATION:  GENERAL RULE

                                                                       * * * * *

(c)        When a lawyer has terminated association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer unless:

            (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and

            (2) any lawyer remaining in the firm has information protected by ER 1.6 and 1.9(b) that is material to the matter.

(d)        A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in ER 1.7. 

OPINION

An imputed disqualification occurs when a lawyer formerly associated with a different firm has represented, in the same or substantially related matter at such former firm, a client whose interests are adverse to a client of his or her current firm.  In such situations, the current law firm must withdraw from representation of such matter unless the client of the former firm consents. 

Imputed (also known as vicarious or infectious) disqualification exists for multiple purposes.  The most basic purpose is to give effect to the principle of loyalty to the client.  Each lawyer is bound by the responsibility of loyalty owed by all other members of the firm.  Therefore, imputed disqualification prevents lawyers from circumventing the ethical rules by allowing partners or employees to perform services that one lawyer would otherwise be prohibited from performing.

Ethical Rule 1.10(c) recognizes, however, that imputed disqualification may cease at a later date under certain circumstances.  Specifically, when the attorney with the actual conflict has terminated association with the firm, the law firm as a whole is no longer disqualified as long as confidential information obtained by such attorney was not disclosed to remaining members of the firm.

Section 204 of the Restatement of the Law Governing Lawyers recognizes the same principle.  Imputation can be removed under certain circumstances:

                        "The restrictions upon an affiliated lawyer . . . do not restrict

                   that lawyer when:

                        (1) The affiliation between the lawyer and the personally-prohibited lawyer that created the imputed prohibition has been terminated and no confidential information of the client, material to the matter, has been communicated to the lawyer or any other lawyer who remains affiliated with the lawyer . . . ."

The presumption exists that all lawyers of a firm have access to confidential client information, and as such, it is shared among the attorneys of the firm.  See Cinema 5, Ltd. v. Cinerama Inc., 528 F.2d 1384 (2nd Cir. 1976); In re Corrugated Container Antitrust Litigation, 659 F.2d 1341 (5th Cir. 1981); Westinghouse Electric Corp. v. Kerr-McGee Corp., 580 F.2d 1311 (7th Cir. 1978).  The presumption, however, is rebuttable.  Novo Terapeutisk Laboratorium A/S v. Baxter Travenol Laboratories, Inc., 607 F.2d 186 (7th Cir. 1979).  Courts have refused to apply a per se disqualification or irrebuttable presumption because doing so would limit access to "technically trained attorneys in specialized areas" and restrict mobility of lawyers associated with large law firms. Laskey Bros. of W. Va., Inc. v. Warner Bros. Pictures, Inc. 224 F.2d 824, 827 (2nd Cir. 1955), cert. denied, 350 U.S. 932, 100 L.Ed. 814, 76 S.Ct. 300 (1956).

The burden is on the law firm to show that none of the remaining attorneys of the firm are privy to confidential information of the former attorney's client.  For example, in Solow v. W.R. Grace & Co., 83 N.Y.2d 303, 632 N.E.2d 437 (3/24/94), the court rejected the use of an irrebuttable presumption of shared confidences as being against the preferred policy of client choice, as well as restricting an attorney's ability to practice.  In this case, the firm was able to prove through affidavits and circumstances that the lawyers involved did not disclose confidential client information with the rest of the firm. 

CONCLUSION

Based on the foregoing, Law Firm 2 should no longer be disqualified from representing Corporate Client if it can show that the confidential information known to Attorney A was not disclosed to any attorney presently associated with Law Firm 2.  The facts presented by Law Firm 2 indicate that no files were brought to Law Firm 2 by Attorney A.  In addition, Attorney A appears able to sign affidavits to the effect that no confidential information was disseminated.  Therefore, there no longer appears to be any imputed disqualification of Law Firm 2.