If a firm hires a former lawyer on a case-by-case contract basis, are the lawyer's conflicts imputed to the whole firm?

Plain-English summary

Opinion 255 (adopted March 21, 1995) addressed a firm whose shareholder lawyer, B, was ending his active association with the firm to become an executive (in a non-legal role) of Corporation X, while remaining a shareholder until bought out. B would not share in firm profits, would not appear on the letterhead, would be screened from firm client confidences, and would be excluded from the conflict-clearance system. Because of B's expertise, the firm wanted to engage him from time to time as an independent contractor to assist on particular matters as a contract lawyer or expert witness, and to mention his availability in promotional materials. The firm asked whether B's disqualifications would impute to the firm under Rule 1.10 even on matters B was not working on, and whether the planned client communications complied with Rule 7.1.

On imputation, the committee concluded that B's executive role at Corporation X could disqualify him under Rule 1.7(b)(4) from a representation where his judgment might be adversely affected by his responsibilities to or interest in Corporation X, and that on any matter where B was associated with the firm as a contract lawyer, the firm would also be disqualified under Rule 1.10(a). But it concluded that an ad hoc, case-by-case association does not create the kind of continuing relationship (like "of counsel" or a "correspondent" firm) that imputes a lawyer's disqualifications to the firm generally. The committee relied on its Opinion 192 and ABA Formal Opinions 84-351 and 88-356, conditioning that conclusion on the firm not creating the impression among clients or the public that a continuing relationship exists, which the firm's screening and disclosures here satisfied.

On client communications, the committee concluded that the firm's plan to describe B's availability as a contract lawyer or expert witness in particular cases did not violate Rule 7.1, because the key is full and accurate disclosure of the exact nature of the relationship, citing ABA Formal Opinion 94-388. As a cautionary note, the committee advised against using the term "special counsel," which is often used interchangeably with "counsel" or "of counsel" to denote a continuing relationship, and suggested "consultant" or "contract lawyer" instead.

Currency note

This opinion was issued in 1995, before the District of Columbia's adoption of the 2007 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 mentioned here.

Common questions

Q: Are a contract lawyer's conflicts imputed to the whole firm?

A: Only on the matters he works on. The committee concluded that an ad hoc, case-by-case association does not make the lawyer and firm a single entity, so Rule 1.10 imputation is limited to matters where he is associated with the firm.

Q: What keeps a contract lawyer from being treated like "of counsel"?

A: Avoiding the impression of a continuing relationship. The committee relied on the lawyer being off the letterhead, screened from confidences, excluded from conflict clearance, and described to clients as available only case-by-case.

Q: Can the firm advertise the contract lawyer's availability?

A: Yes, with full disclosure. The committee concluded that describing his case-by-case availability complies with Rule 7.1 so long as clients receive an accurate description of the exact nature of the relationship.

Q: What did the committee say about calling him "special counsel"?

A: It cautioned against it. Because "special counsel" is often used to denote a continuing relationship, the committee advised using "consultant" or "contract lawyer" instead.

Background and rules framework

The opinion interpreted D.C. Rule 1.10(a) (imputed disqualification), Rule 1.7(b)(4) (a personal-interest conflict from the lawyer's responsibilities to or interest in a third party), and Rule 7.1 (communications about a lawyer's services, barring false or misleading statements), and noted Rule 1.5(e) (division of fees) among the applicable rules. It distinguished a continuing "of counsel" relationship, which is treated as a single entity for conflicts, from an ad hoc, matter-specific engagement.

Citations and references

Rules of Professional Conduct:

• D.C. RPC 1.10(a) / Model Rule 1.10 (imputed disqualification)
• D.C. RPC 1.7(b)(4) / Model Rule 1.7 (personal-interest conflict from third-party responsibilities)
• D.C. RPC 7.1 / Model Rule 7.1 (false or misleading communications)
• D.C. RPC 1.5(e) / Model Rule 1.5 (division of fees)

Cases:

• Richers v. Marsh & McLennan, 459 N.W.2d 478 (Iowa 1990), conflicts of co-counsel in different firms not imputed absent shared confidences
• Brennan's Inc. v. Brennan's Restaurants, Inc., 590 F.2d 168 (5th Cir. 1979), co-counsel relationship and imputation

Other opinions cited:

• D.C. Bar Op. 192 (1988): a continuing "of counsel" relationship is a single entity for conflicts
• ABA Formal Op. 88-356 (1988): temporary and contract lawyers
• ABA Formal Op. 90-357 (1990): the "of counsel" designation

See also

• DC Ethics Op. 352: Temporary Contract Lawyers and Conflict Imputation
• DC Ethics Op. 338: Of Counsel to One Firm, Partner in Another Firm Name
• DC Ethics Op. 303: Sharing Office Space by Unaffiliated Lawyers

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-255