When a California lawyer moves from one law firm to another, which conflicts of interest from the former firm travel with the lawyer, and when are those conflicts imputed to the new firm?
LACBA Ethics Opinion 501: Conflicts That Travel When a Lawyer Changes Firms
Short answer: Under former California Rule 3-310(E) as analyzed in this opinion, a lawyer who leaves one firm and joins another does not violate the rule by undertaking representation adverse to a former-firm client unless the lawyer obtained from the former representation confidential information material to the new matter. If the lawyer holds no such material confidential information, neither the lawyer nor the new firm violates Rule 3-310(E). The committee distinguishes the disciplinary rule from the court-made civil disqualification doctrine: the lawyer carries the lawyer's actual-knowledge conflicts to the new firm and those are imputed to colleagues, but conflicts that were merely imputed to the lawyer at the old firm do not travel.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Los Angeles County Bar Association's view of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
The committee considers a litigation partner who moves from Law Firm A (which represented Insurance Co. in claims and coverage matters) to Law Firm B (which has been asked to act as Cumis counsel adverse to Insurance Co. for Insurance Co.'s insured). The committee analyzes two scenarios.
In Scenario A, the partner had no involvement with Insurance Co. at Firm A and holds no actual knowledge of confidential information about Insurance Co. The committee reads former Rule 3-310(E) literally: the rule applies to a member who "has obtained confidential information material" to the new representation. Where the moving lawyer holds no such material confidential information, the rule is not triggered, regardless of the rule's imputation effect on other Firm B lawyers.
The committee distinguishes the court-made civil disqualification doctrine. Under cases such as Henriksen v. Great American Savings & Loan (1992), Chambers v. Superior Court (1981), and In re Complex Asbestos Litigation (1991), the civil disqualification analysis turns on whether the lawyer is presumed to have received confidences at the old firm. Where the lawyer did no work on a substantially related matter and obtained no actual material confidential information, the committee concludes neither the disciplinary rule nor the civil "imputed knowledge" rule should bar the lawyer or the new firm from handling the matter. The committee draws on the "screening" jurisprudence in Dieter v. Regents (E.D. Cal. 1997), Silver Chrysler Plymouth (2d Cir. 1975), and other federal cases.
In Scenario B, the partner had acted as panel counsel for Insurance Co. at Firm A, defending Insurance Co. and its insureds against third-party claims. Here the lawyer has actual knowledge of confidential information from the prior representation. Whether the new representation triggers Rule 3-310(E) depends on whether that information is material to the new matter. The committee anchors the Cumis-counsel framework in San Diego Naval Federal Credit Union v. Cumis Ins. Soc. (1984), Truck Insurance Exchange v. Superior Court (1997), Civ. Code section 2860, and the cases on insurer-insured tripartite representation (American Mutual Liability v. Superior Court (1974); Dynamic Concepts v. Truck Insurance Exchange (1998)).
The committee separates the rule-based and court-based analyses. Although Rule 3-310(E) by its text reaches only the lawyer who holds the confidential information, the new firm should still consider civil-disqualification risk. A failure to address civil disqualification could carry ethical consequences via Rule 3-110 (competence), Rule 3-310(B)(2) (disclosure of relationships), and Bus. & Prof. Code section 6068(m) (duty to keep clients informed of significant developments), particularly if the new firm's representation is later challenged.
The committee summarizes the imputation framework. For civil disqualification, the lawyer carries to the new firm all conflicts arising from the lawyer's own actual knowledge; those conflicts then attach to each lawyer in the new firm through the imputed-knowledge rule. But conflicts that were merely imputed to the lawyer at the old firm (i.e., arising from another lawyer's representation of the client without the moving lawyer's involvement) do not transfer.
The committee aligns its analysis with State Bar Formal Opinion 1998-152, LACBA Formal Opinion 396, and LACBA Formal Opinion 464.
In practice
The opinion holds that, under former California Rule 3-310(E) as it stood in 1999, the moved lawyer's eligibility to undertake new-firm representation adverse to a former-firm client turns on the lawyer's actual possession of confidential information material to the new matter. The committee directs the new firm to evaluate two questions: (1) whether Rule 3-310(E) applies to the moving lawyer (actual material confidential information), and (2) whether civil-disqualification doctrine bars the new firm regardless of the rule's text. The committee identifies the imputation asymmetry: actual-knowledge conflicts travel and are imputed to the new firm; merely imputed conflicts at the old firm do not travel.
California's professional-conduct rules were revised effective November 1, 2018; former Rule 3-310(E) corresponds substantially to current Rule 1.9 (duties to former clients), and current Rule 1.10 addresses imputation expressly. Current Rule 1.10 contemplates a screening procedure that was not formally codified in California's pre-2018 rules. The committee's analysis predates the 2018 revisions.
Common questions
Q: When a California lawyer changes firms, what conflicts move with the lawyer?
A: Per the opinion, the lawyer carries all conflicts arising from the lawyer's actual knowledge of confidential information from former representations. Conflicts that were merely imputed to the lawyer at the old firm (without the lawyer's involvement or knowledge) do not travel.
Q: Does Rule 3-310(E) bar a lateral hire from working on matters adverse to a former-firm client?
A: Per the opinion, only where the lateral lawyer holds confidential information from the former representation that is material to the new matter. If the lawyer had no involvement and no actual knowledge, the rule does not apply by its terms.
Q: Is the rest of the new firm barred when the lateral is barred?
A: Per the opinion, Rule 3-310(E) by its text reaches only the lawyer who obtained the material confidential information. The new firm should separately evaluate civil-disqualification doctrine, which may impute the lateral's conflicts to colleagues at the new firm. A failure to address civil-disqualification risk could carry ethical consequences under Rule 3-110, Rule 3-310(B)(2), or section 6068(m).
Q: What if the lawyer worked as panel counsel for the now-adverse insurer?
A: Per the opinion's Scenario B, the lawyer holds actual knowledge of confidential information from the prior insurer representation. Whether that information is material to the new representation determines whether Rule 3-310(E) is triggered.
Q: Does Cumis-counsel status affect the analysis?
A: Per the opinion, the Cumis-counsel framework (San Diego Naval Federal Credit Union v. Cumis Ins. Soc. (1984); Civ. Code section 2860) defines the substantive representation but does not displace the conflicts analysis. The new firm must still satisfy Rule 3-310(E) and civil-disqualification doctrine.
Background and rules framework
The opinion interprets former California Rules of Professional Conduct 3-110, 3-310(B)(2), and 3-310(E), and Bus. & Prof. Code section 6068(m), and Civ. Code section 2860 (Cumis counsel). It anchors the civil-disqualification analysis in Henriksen v. Great American Savings & Loan (1992), Chambers v. Superior Court (1981), In re Complex Asbestos Litigation (1991), and Klein v. Superior Court (1988); the Cumis framework in San Diego Naval Federal Credit Union v. Cumis Ins. Soc. (1984); and the federal screening jurisprudence in Silver Chrysler Plymouth (2d Cir. 1975) and Dieter v. Regents (E.D. Cal. 1997).
Citations and references
Rules of Professional Conduct:
- Former California Rule 3-110 (competence)
- Former California Rule 3-310(B)(2) (disclosure of relationships)
- Former California Rule 3-310(E) (former-client adverse employment)
Statutes:
- Bus. & Prof. Code section 6068(m) (duty to inform)
- Civ. Code section 2860 (Cumis counsel)
Cases:
- American Can Co. v. Citrus Feed Co., 436 F.2d 1125 (5th Cir. 1971)
- American Mutual Liability Insurance Co. v. Superior Court, 38 Cal.App.3d 579 (1974)
- Assurance Company of America v. Haven, 32 Cal.App.4th 78 (1995)
- Blanchard v. State Farm Fire & Casualty Co., 2 Cal.App.4th 345 (1991)
- Brockway v. State Bar, 53 Cal.3d 51 (Cal. 1991)
- Chadwick v. Superior Court, 106 Cal.App.3d 108 (1980)
- Chambers v. Superior Court, 121 Cal.App.3d 893 (1981)
- Cho v. Superior Court, 39 Cal.App.4th 113 (1995)
- Dieter v. Regents of the University of California, 963 F.Supp. 908 (E.D. Cal. 1997)
- Dill v. Superior Court, 158 Cal.App.3d 301 (1984)
- Dynamic Concepts, Inc. v. Truck Insurance Exchange, 61 Cal.App.4th 999 (1998)
- Employers Insurance of Wausau v. Albert D. Seeno Construction, 692 F.Supp. 1150 (N.D. Cal. 1988)
- Executive Aviation, Inc. v. National Insurance Underwriters, 16 Cal.App.3d 799 (1971)
- Gas-A-Tron of Arizona v. Union Oil Co. of California, 534 F.2d 1322 (9th Cir. 1976)
- Golden Eagle Insurance Company v. Foremost Insurance Company, 20 Cal.App.4th 1372 (1993)
- Henriksen v. Great American Savings & Loan, 11 Cal.App.4th 109 (1992)
- H.F. Ahmanson & Co. v. Salomon Brothers, Inc., 229 Cal.App.3d 1445 (1991)
- Higdon v. Superior Court, 227 Cal.App.3d 1667 (1991)
- In re Complex Asbestos Litigation, 232 Cal.App.3d 572 (1991)
- Klein v. Superior Court, 198 Cal.App.3d 894 (1988)
- Panduit Corp. v. All States Plastic Manufacturing Co., 744 F.2d 1564 (7th Cir. 1984)
- Rosenfeld Construction Co. v. Superior Court, 235 Cal.App.3d 566 (1991)
- San Diego Naval Federal Credit Union v. Cumis Insurance Society, Inc., 162 Cal.App.3d 358 (1984)
- Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751 (2d Cir. 1975)
- State Farm Fire & Casualty Co. v. Superior Court, 216 Cal.App.3d 1222 (1989)
- Toyota Motor Sales, U.S.A., Inc. v. Superior Court, 46 Cal.App.4th 778 (1996)
- Trone v. Smith, 621 F.2d 994 (9th Cir. 1980)
- Truck Insurance Exchange v. Superior Court, 51 Cal.App.4th 985 (1997)
- Woods v. Superior Court, 149 Cal.App.3d 931 (1983)
- Yorn v. Superior Court, 90 Cal.App.3d 669 (1979)
Other opinions cited:
- Cal. State Bar Formal Opinion 1998-152
- LACBA Formal Opinion 396
- LACBA Formal Opinion 464
See also
- LACBA Opinion 506: Prospective-Client Confidentiality
- LACBA Opinion 524: Screening Nonlawyer Hires With Prior-Firm Information
- LACBA Opinion 513: Cross-Examination of Former Client as Expert
Source
- Landing page: https://lacba.org/?pg=ethics-opinions
- Original PDF: https://lacba.org/docDownload/2010607