If a D.C. lawyer is job-hunting with the opposing party or opposing counsel in a matter, does that create a conflict of interest with the lawyer's client?
Apply this to your situation
This page answers the general question as of 2014. 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 367 (published July 2014) addresses the conflict that can arise when a lawyer who is representing a client also seeks employment with the client's adversary or the adversary's lawyer, and it clarifies the Committee's earlier Opinion 210. The governing rule is Rule 1.7(b)(4), the personal-interest conflict provision: a conflict exists if the lawyer's professional judgment on behalf of the client will be, or reasonably may be, adversely affected by the lawyer's own financial, business, property, or personal interests. The opinion concludes both a subjective test (does this lawyer's judgment risk being affected) and an objective test (would a reasonable lawyer's judgment be at risk) must be applied.
The opinion concludes there is no bright-line point when the conflict arises, and that the moment varies with the facts. Factors include whether the individual lawyer is materially and actively involved in representing the client and, if so, whether the lawyer's interest in the prospective employer is targeted and specific and whether that interest has been communicated to, and reciprocated by, the prospective employer. The opinion notes that where the prospective employer is affiliated with but separate and distinct from the adverse entity, there may be no conflict at all, because the adversary and the prospective employer may be separate entities for conflicts purposes.
If a personal-interest conflict does arise, the opinion concludes three courses of action may be available, each subject to the Rules: (a) disclose the existence and nature of the conflict and its possible adverse consequences and obtain the client's informed consent under Rule 1.7(c); (b) withdraw from the representation; or (c) stop seeking employment with the adversary or the adversary's lawyer until all pending matters related to that potential employment are completed. The opinion further concludes that the individual lawyer's personal-interest conflict is not imputed to other lawyers in the firm, nonprofit, or corporate legal department, so long as it does not present a significant risk of adversely affecting their representation, and that the imputation rule does not apply to a government agency. A subordinate lawyer who raises the issue with a supervisory lawyer and follows the supervisor's reasonable determination and recommended course will not be held professionally responsible even if the supervisor's call later proves wrong (Rule 5.2).
In practice
Under the D.C. rules as they stood at the time of the opinion, a lawyer who is representing a client and is job-hunting with the client's adversary or opposing counsel should evaluate, using both subjective and objective tests, whether the job search will or reasonably may affect the lawyer's professional judgment under Rule 1.7(b)(4). The opinion concludes the analysis is fact-specific, with factors including how actively the lawyer represents the client and whether the lawyer's interest in the prospective employer is targeted, specific, and reciprocated; an affiliate that is separate from the adverse entity may present no conflict.
The opinion concludes that if a conflict exists, the lawyer may disclose it and obtain the client's informed consent, withdraw, or stop pursuing the job until the related matters conclude. It concludes the personal conflict is not imputed to other firm or in-house lawyers absent a significant risk to their representation, that imputation does not apply to a government agency, and that a subordinate lawyer who follows a supervisor's reasonable determination is protected under Rule 5.2. Because the opinion predates later rule developments, verify the current D.C. rules before relying on specific requirements.
Common questions
Q: Is it automatically a conflict to apply for a job with the opposing party or opposing counsel?
A: The opinion concludes no. A conflict arises under Rule 1.7(b)(4) only if the lawyer's professional judgment for the client will be, or reasonably may be, adversely affected, judged by both subjective and objective tests; there is no bright-line rule.
Q: What factors decide whether a conflict has arisen?
A: The opinion concludes the factors include whether the lawyer is materially and actively involved in the client's matter and, if so, whether the lawyer's interest in the prospective employer is targeted, specific, and has been communicated to and reciprocated by that employer.
Q: If a conflict exists, what can the lawyer do?
A: The opinion concludes three options may be available: disclose the conflict and obtain the client's informed consent under Rule 1.7(c), withdraw from the representation, or stop seeking the job until all related pending matters are completed.
Q: Does one lawyer's job-search conflict disqualify the whole firm?
A: The opinion concludes no; the personal-interest conflict is not imputed to other lawyers absent a significant risk to their representation, and the imputation rule does not apply to a government agency.
Q: What if I am a junior lawyer and my supervisor says there is no conflict?
A: The opinion concludes that under Rule 5.2 a subordinate lawyer who discusses the issue with the supervisor and follows the supervisor's reasonable determination and recommended course is not professionally responsible even if the supervisor's call is later found incorrect.
Background and rules framework
The opinion interprets D.C. Rule 1.7(b)(4) (personal-interest conflicts) and Rule 1.7(c) (informed consent), read with Rule 1.10 (imputation, which does not reach personal conflicts absent significant risk, and does not apply to government agencies), Rule 5.2 (subordinate lawyers), and the underlying duties of diligence, communication, and confidentiality (Rules 1.3, 1.4, 1.6). It clarifies the Committee's earlier Opinion 210.
Citations and references
Rules of Professional Conduct:
- D.C. RPC 1.7(b)(4), 1.7(c) / Model Rule 1.7 (personal-interest conflicts; informed consent)
- D.C. RPC 1.10 / Model Rule 1.10 (imputation; carve-out for personal conflicts and government agencies)
- D.C. RPC 5.2 / Model Rule 5.2 (responsibilities of a subordinate lawyer)
- D.C. RPC 1.3, 1.4, 1.6 / Model Rules 1.3, 1.4, 1.6 (diligence; communication; confidentiality)
Other opinions cited:
- D.C. Bar Legal Ethics Op. 210 (clarified by this opinion)
See also
- ABA Formal Op. 96-400: Job Negotiations With an Adverse Firm or Party
- NJ ACPE Op. 743: Imputing Personal-Interest Conflicts
- ABA Formal Op. 494: Personal Relationships With Opposing Counsel
- DC Ethics Op. 390: Prior-Work Conflicts and Lawyer as Witness
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-367
Get today's answer for your situation
You just read a 2014 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.