In Kentucky, may a lawyer negotiate for a job with the firm representing the adverse party in a matter, and must the negotiations be disclosed to the lawyer's client?

Plain-English summary

The Committee addressed whether a lawyer at one firm may seek a job with the firm representing the adverse party in a matter, and whether the negotiations must be disclosed to the client. It noted that KRPC 1.11 and 1.12 contain per se bars on former government lawyers and former judges or arbitrators negotiating for employment with a party or lawyer in a matter they handled, but that the rules contain no comparable explicit rule for lawyers in private practice.

The Committee concluded that a lawyer who is actually involved in the representation of one of the adverse clients, or who has actual knowledge of information protected by KRPC 1.6 and 1.9(b), should not participate in such job negotiations without the client's consent after consultation, because the negotiations could suggest a violation of the conflict and former-client rules and could even lead to imputed disqualification of the negotiating firm (Comment 13 to KRPC 1.10; compare ABA Formal Op. 96-400). It tied this to KRPC 1.7(b), under which a representation may not be materially limited by the lawyer's own interests absent client consent.

For a lawyer not involved in the matter and without protected information, the Committee concluded there is no per se rule requiring notice to the client or disclosure and consent, though an arguable question of professional duty could arise depending on the size of the firms, the importance of the matter, or other circumstances. In that situation, the Committee said the lawyer should consider consulting other members of the firm (KRPC 5.1, 5.2).

Currency note

This opinion was issued in 1997 and predates the Kentucky Supreme Court's substantial 2009 revisions to the Rules of Professional Conduct (SCR 3.130), under which Rule 1.7 referenced here was amended. The Kentucky Bar Association notes that lawyers should consult the current version of the rules before relying on this opinion. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a Kentucky lawyer working on a case job-hunt with the opposing firm?

A: Per the opinion, not without the client's consent. The Committee concluded a lawyer involved in the matter, or holding protected client information, should not negotiate for employment with the adverse firm without consent after consultation.

Q: What about a lawyer at the firm who is not working on the case?

A: The opinion concluded such negotiations are not necessarily a violation, and there is no per se rule requiring client notice, though disclosure may be appropriate in specific cases.

Q: Could these negotiations disqualify the lawyer's firm?

A: Per the opinion, potentially. The Committee noted (citing Comment 13 to KRPC 1.10) that negotiations by an involved lawyer could lead to imputed disqualification of the negotiating firm.

Q: What should an uninvolved lawyer do if a duty question arises?

A: The opinion concluded the lawyer should consider consulting other members of the firm under KRPC 5.1 and 5.2.

Background and rules framework

The opinion interprets KRPC 1.7(b) (a lawyer's own interests as a material limitation; the Model Rule 1.7 counterpart), KRPC 1.6 and 1.9 (confidentiality and duties to former clients; Model Rules 1.6, 1.9), and KRPC 1.10 (imputation; Model Rule 1.10), against the explicit job-negotiation bars for former government lawyers and judges in KRPC 1.11(c)(2) and 1.12(b), and the supervisory rules KRPC 5.1 and 5.2.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / KRPC 1.7(b) (conflicts; the lawyer's own interests)
• MR 1.6, MR 1.9 / KRPC 1.6, 1.9 (confidentiality; former clients)
• MR 1.10 / KRPC 1.10 (imputation; Comment 13 on job negotiations)
• MR 5.1, MR 5.2 / KRPC 5.1, 5.2 (responsibilities of supervisory and subordinate lawyers)

Other opinions cited:

• KBA E-354 (1993): efficacy of screening
• ABA Formal Op. 96-400 (1996): job negotiations with an adverse firm or party

See also

• KBA Ethics Op. E-418: Imputed Disqualification in Office-Sharing Arrangements
• KBA Ethics Op. E-412: A Prosecutor's Law Partner Representing Criminal Defendants

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-399.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-399
Issued: May 1997

Since the adoption of the Rules of Professional Conduct in 1990, the Kentucky Supreme Court has adopted various amendments, and made substantial revisions in 2009. For example, this opinion refers to Rule 1.7, which was amended. Lawyers should consult the current version of the rules and comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

When law firms represent adverse parties in a matter, may a lawyer in one of the law firms negotiate for employment with the other law firm? If so must disclosure of the fact of the negotiations be made to the firms’ client who is involved in the adverse representation?

Answer:

If there is an appearance of side-switching by a lawyer who is actually working on the case, the negotiations should not be initiated without the client’s consent. If the lawyer is involved in the case or has actual knowledge of protected client information within the meaning of KRPC 1.9 and 1.10, then the lawyer should not negotiate for employment with the law firm representing the adverse party without the client’s consent. If the lawyer seeking employment is not involved in the case, the negotiations are not necessarily violative of the Rules, but disclosure to the firm’s client may be appropriate and prudent in specific cases.

References:

KRPC 1.6, 1.7(b), 1.9, 1.10, 1.11(c)(2) and 1.12(b); KRPC 5.1 and 5.2; KBA E354 (1993); ABA Formal Op. 96-400 (1996) (Job Negotiations With Adverse Firm Or Party). OPINION

KRPC 1.11 and 1.12 contain per se rules for the former government lawyer and for the former judge or arbitrator, which provide that if the former government lawyer or the judge or arbitrator worked personally or substantially on a matter while in government or judicial service, then the former government lawyer, or judge or arbitrator may not negotiate for employment with any person who is involved as a party or attorney in that matter. The KRPC contain no similar, explicit rule relating to lawyers in private practice. On the other hand, if the lawyer who wishes to change jobs is actually involved in the representation of one of the adverse clients or has actual knowledge of information protected by Rules 1.6 and 1.9(b), the negotiations could suggest a violation of KRPC 1.16 and 1.9, and even lead to the imputed disqualification of the negotiating law firm. See Comment 13 to KRPC 1.10. Compare ABA Formal Op. 96-400 (1996). On the efficacy of screening see KBA E-354 (1993). We also note that KRPC 1.7(b) provides that - “A lawyer shall not represent a client if the

representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation.” Accordingly, we believe that the lawyer who is actually involved in the representation of one of the adverse clients or who has actual knowledge of information protected by Rules 1.6 and 1.9(b) should not participate in such negotiations without the consent of the lawyer’s client obtained after appropriate consultation. If the lawyer is not involved in the matter and has no actual knowledge of information protected by Rules 1.6 and 1.9(b), there may still be an arguable question of professional duty, depending on the size of the firms involved, the importance of the matter, or other circumstances. There is no per se rule requiring notification of the client, or disclosure and consent in this context. However, we believe that if the negotiations would lead to an arguable question of professional duty, the lawyer seeking employment should consider consulting with other member of his or her firm. See KRPC 5.1 and 5.2.
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Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.