When does one Indiana lawyer's conflict disqualify the lawyer's current, former, or new firm?

Plain-English summary

Opinion 3-22 applies Rule 1.10 to lawyers joining, leaving, or remaining in firms. A conflict under Rules 1.7, 1.9, or 2.2 is ordinarily imputed to every lawyer in the firm unless the conflict is strictly personal or the affected clients provide valid informed consent.

After a lawyer leaves, the former firm can oppose that lawyer's client only when the new work is not the same or substantially related and no remaining lawyer has material confidential information. Files left in common storage and matter information shared within the firm can continue the disqualification.

Prospective-client information also can disqualify a firm. The opinion's example bars representation when the same matter was discussed at length, damaging information remained accessible in the office, and lawyers commonly discussed prospective matters. Limiting the intake to information reasonably needed to decide whether to accept the client can support the Rule 1.18 screening and notice exception.

For an incoming lawyer who worked on the opposing side, the migratory-lawyer exception depends on the lawyer not having been the primary lawyer, effective screening from files and conversations, no share of the fee, and written notice sufficient for the affected client to evaluate compliance. If the incoming lawyer was the primary lawyer, screening alone does not cure the conflict without informed consent.

In practice

Under this opinion, firms screen incoming and outgoing lawyers against current, former, and prospective-client matters. The analysis follows the lawyer's role, matter relationship, information retained or shared, whether a conflict is personal, consent, screening procedures, fee allocation, and written notice.

Common questions

Q: Is every personal conflict imputed to the firm?

A: No. The opinion explains that a conflict strictly personal to one lawyer, such as the family relationship in its hypothetical, may not disqualify the other lawyers.

Q: Can a firm oppose a client of a lawyer who has left?

A: Yes only when the new work is not the same or substantially related and no remaining lawyer has material confidential information.

Q: Can information from a declined prospective client disqualify the firm later?

A: Yes. The opinion applies Rules 1.18 and 1.10 when significantly harmful information remains available or was shared within the firm.

Q: Can screening save the new firm when an incoming lawyer worked for the opponent?

A: Sometimes. The opinion requires the migratory lawyer not to have been the primary lawyer, effective screening, no fee share, and sufficient written notice.

Q: What if the incoming lawyer was the primary lawyer on the matter?

A: The opinion states that screening cannot prevent firmwide disqualification without informed consent from the affected clients.

Background and rules framework

The opinion applies Indiana Rules 1.6, 1.7, 1.8, 1.9, 1.10, 1.18, and 2.2. Its hypotheticals address current clients, clients of departed lawyers, prospective clients, personal family conflicts, and lawyers moving to an opposing firm shortly before trial.

Citations and references

Indiana Rules of Professional Conduct:

• Rules 1.6, 1.7, 1.8, 1.9, 1.10, 1.18, and 2.2

See also

• Indiana Advisory Op. 2-22: Detecting Conflicts of Interest
• Indiana Advisory Op. 1-23: Government Lawyer Conflicts
• Virginia LEO 1774: Patent Opinion Adverse to a Current Client

Source

• Landing page: Indiana attorney advisory opinions
• Original PDF: Opinion 3-22