When does a temporary contract lawyer's conflict get imputed to the firm that hires the lawyer for a project?
Apply this to your situation
This page answers the general question as of 2010. 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 352 (published February 2010) addresses temporary contract lawyers and the firms that hire them. In the inquiry, a contract lawyer worked for Law Firm A on a multi-party case; after the project ended and Firm A terminated the contract, Law Firm B, representing a party adverse to Firm A's client in the same or a substantially related case, wanted to hire the same contract lawyer for an unrelated matter (for example, digesting transcripts and reviewing discovery documents), often working through a staffing agency and sometimes at a satellite review center.
The opinion concludes that the imputation of a temporary contract lawyer's individual conflicts to a hiring firm under Rule 1.10 depends on the nature and extent of the lawyer's relationship with the firm and the extent of the lawyer's access to the firm's confidential client information. A contract lawyer who works with a firm sporadically on a few projects, or on a single project for a longer period, would not be "associated with" the hiring firm if two conditions hold: the firm does not have, and does not create the impression of, a continuing relationship with the lawyer; and the firm institutes appropriate safeguards to ensure the lawyer does not access the firm's confidential client information except for the specific matter or matters on which the lawyer is working.
The opinion also concludes that, independent of imputation, the contract lawyer and the hiring firm must protect the confidentiality of all client information, and the firm must take appropriate steps to avoid obtaining the confidences and secrets the contract lawyer learned during former engagements. In other words, the confidentiality and former-client duties under Rules 1.6 and 1.9 apply regardless of whether the lawyer is treated as associated with the firm.
In practice
Under the D.C. rules as they stood at the time of the opinion, a firm hiring a temporary contract lawyer can avoid having the lawyer's individual conflicts imputed to the whole firm under Rule 1.10 if the lawyer is not "associated with" the firm. The opinion concludes that turns on the nature of the relationship and access to confidential information: the firm should avoid having or projecting a continuing relationship, and should put safeguards in place so the contract lawyer can reach only the confidential information for the specific matters assigned.
The opinion concludes that whether or not imputation attaches, the contract lawyer and the firm must protect the confidentiality of all client information, and the firm must avoid obtaining the confidences and secrets the lawyer carried from prior work. Because the opinion predates later rule developments, verify the current D.C. rules before relying on specific requirements.
Common questions
Q: Does hiring a contract lawyer who worked for the other side disqualify my whole firm?
A: The opinion concludes not necessarily. Imputation under Rule 1.10 depends on whether the contract lawyer is "associated with" the firm, which turns on the nature of the relationship and the lawyer's access to the firm's confidential client information.
Q: How can a firm keep a contract lawyer from being "associated with" it?
A: The opinion concludes the firm should neither have nor create the impression of a continuing relationship with the lawyer, and should institute appropriate safeguards so the lawyer cannot access the firm's confidential client information except for the specific matters worked on.
Q: Do confidentiality duties still apply if there is no imputation?
A: The opinion concludes yes. Regardless of imputation, the contract lawyer and the firm must protect the confidentiality of all client information, and the firm must take steps to avoid obtaining the confidences and secrets the lawyer learned in prior engagements.
Background and rules framework
The opinion interprets D.C. Rule 1.10 (imputed disqualification, which applies to lawyers "associated" in a firm), read with Rule 1.9 (duties to former clients) and Rule 1.6 (confidentiality of information), and Rule 4.4 (respect for the rights of third persons). It applies these rules to the relationship between a temporary contract lawyer and a hiring firm, focusing on when the lawyer is "associated with" the firm for imputation purposes.
Citations and references
Rules of Professional Conduct:
- D.C. RPC 1.10 / Model Rule 1.10 (imputed disqualification)
- D.C. RPC 1.9 / Model Rule 1.9 (duties to former clients)
- D.C. RPC 1.6 / Model Rule 1.6 (confidentiality of information)
- D.C. RPC 4.4 / Model Rule 4.4 (respect for rights of third persons)
See also
- NY State Bar Op. 715: Contract Lawyer for Multiple Firms
- ABA Formal Op. 00-420: Surcharge for Contract Lawyers
- NY State Bar Op. 794: Law School Clinic Conflicts
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-352
Get today's answer for your situation
You just read a 2010 opinion on this question. Ezel checks the current rules of professional conduct in your state and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.