Does a lawyer's past participation in a joint defense group disqualify the lawyer (or the firm) from later taking a matter adverse to a group member?
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This page answers the general question as of 2009. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 349 (published September 2009) addresses conflicts of interest arising from a lawyer's prior participation in a joint defense group. The opinion concludes that joint defense agreements do not create "former client" conflicts under Rule 1.9, because the other members of a joint defense group do not become the lawyer's clients merely by virtue of the agreement.
The opinion concludes, however, that a lawyer who participates in a joint defense agreement may acquire contractual and fiduciary obligations to the group members who were not the lawyer's clients. Those obligations can give rise to a personally disqualifying conflict under Rule 1.7(b)(4) to the extent they materially limit the lawyer's ability to prosecute or defend a substantially related matter adverse to a joint defense group member. The conflict is the lawyer's own, grounded in duties owed to non-clients, not a client-conflict under Rule 1.9.
On imputation, the opinion concludes that under Rule 1.10(a)(1) such a conflict is imputed to other lawyers in the firm only if the personally disqualified lawyer's obligations present a significant risk of adversely affecting the representation by the remaining lawyers. Where the joint defense matter was handled while the disqualified lawyer was at a different firm, the new firm can avoid imputed disqualification by timely screening that lawyer from the new, adverse matter. Where the disqualified lawyer remains at the same firm, the opinion concludes the analysis is harder: other lawyers at that firm will likely face a Rule 1.7(b)(4) conflict on the new matter unless it is clear both that none of them has obligations under the joint defense agreement another firm lawyer signed and that none was exposed to confidential information about the prior representation.
In practice
Under the D.C. rules as they stood at the time of the opinion, a lawyer's prior work in a joint defense group does not produce a Rule 1.9 former-client conflict as to non-client group members, but it can create a personal Rule 1.7(b)(4) conflict where the lawyer's contractual or fiduciary obligations to those members would materially limit a substantially related adverse matter. The opinion concludes that conflict is not automatically imputed to firm colleagues under Rule 1.10(a)(1); imputation depends on whether it poses a significant risk to the colleagues' representation.
The opinion concludes that if the personally disqualified lawyer has moved to a new firm, the new firm may take the adverse matter by timely screening the lawyer, whereas if the lawyer remains at the same firm the colleagues likely face a disqualifying conflict unless none of them is bound by the joint defense agreement and none was exposed to confidential information from the prior matter. Because the opinion predates later rule developments, verify the current D.C. rules before relying on specific requirements.
Common questions
Q: Does a joint defense agreement make the other members my former clients?
A: The opinion concludes no. Members of a joint defense group do not become the lawyer's clients by virtue of the agreement, so it creates no former-client conflict under Rule 1.9.
Q: How can a joint defense agreement still disqualify me?
A: The opinion concludes the agreement may give the lawyer contractual and fiduciary obligations to non-client group members, which can create a personal Rule 1.7(b)(4) conflict to the extent they materially limit the lawyer in a substantially related matter adverse to a group member.
Q: Is my whole firm disqualified if I have such a conflict?
A: The opinion concludes not automatically. Under Rule 1.10(a)(1), the conflict is imputed to firm colleagues only if it presents a significant risk of adversely affecting their representation of the client.
Q: Can screening let my firm take the adverse matter?
A: The opinion concludes that where the lawyer handled the joint defense matter at a different firm, the new firm can avoid imputed disqualification by timely screening the lawyer; where the lawyer remained at the same firm, the colleagues likely face a conflict unless none is bound by the agreement and none was exposed to confidential information from the prior matter.
Background and rules framework
The opinion interprets D.C. Rule 1.9 (duties to former clients), Rule 1.7(b)(4) (personal-interest conflicts), and Rule 1.10(a)(1) (imputed disqualification, applying only where the personally disqualified lawyer's situation presents a significant risk to colleagues' representation), read with Rule 1.6 (confidentiality). It applies these rules to obligations a lawyer assumes toward non-client members of a joint defense group.
Citations and references
Rules of Professional Conduct:
- D.C. RPC 1.9 / Model Rule 1.9 (duties to former clients)
- D.C. RPC 1.7(b)(4) / Model Rule 1.7 (personal-interest conflicts)
- D.C. RPC 1.10(a)(1) / Model Rule 1.10 (imputed disqualification; screening)
- D.C. RPC 1.6 / Model Rule 1.6 (confidentiality of information)
See also
- ABA Formal Op. 497: Materially Adverse Conflicts
- ABA Formal Op. 509: Confidential Gov't Information
- DC Ethics Op. 356: Unidentifiable and Thrust-Upon Conflicts
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-349
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