When a lawyer or law clerk moves firms, can they share which clients and matters they worked on so the new firm can check conflicts?

Plain-English summary

A law student clerked for Firm A and did research on a matter that became Lawsuit X. After graduating, he joined Firm B, whose Charlotte office was later retained to defend Lawsuit X. Before he started at Firm B, the firm asked him to identify the client matters he had worked on so conflicts could be checked, but Firm A directed him not to disclose that information. After Firm A moved to disqualify Firm B, Firm B screened the new graduate as soon as it learned of his prior involvement.

The opinion concludes the law graduate's clerk-stage involvement is not imputed to Firm B. Under Rule 1.10 and Comment [4], conflicts created by work performed as a law clerk are not imputed to other lawyers in the firm, though the clerk should be screened from the matter (and Rule 1.10(c) separately allows a firm to hire a lawyer who worked for an opposing party at another firm if the lawyer is timely screened and the affected former client is notified). On timeliness, the opinion explains that screening must be implemented as soon as practical after the firm knows or should know screening is needed (Rule 1.0, cmt. [10]); a screen put in place before the person participates in the matter or learns confidential information serves the screen's purpose of protecting confidential information (cmt. [9]).

On the disclosure question, the opinion concludes it is proper for a hiring firm to ask an incoming graduate or lawyer to identify prior client matters so conflicts can be detected. Rule 1.7 and its Comment [3] require reasonable procedures to identify conflicts, but the identity of persons and issues in a matter is confidential under Rule 1.6(a). Because Rule 1.6(b)(1) permits disclosure to comply with the Rules, and following the ABA's Formal Opinion 09-455, lawyers moving between firms may disclose the persons and issues involved so conflicts can be checked. The opinion limits this: disclosure should be no greater than reasonably necessary, must not compromise privilege or prejudice a client, and the receiving firm may not use the information for any purpose other than detecting and resolving conflicts. The former firm is likewise permitted to disclose the identity of the clients and matters the person worked on for the same purpose.

In practice

Under the North Carolina rules as they stood at the time, the opinion holds that conflict-checking on lateral hires is both required and workable: a hiring firm may collect prior-matter information from an incoming lawyer or clerk, and the former firm may provide it, with disclosure confined to what is reasonably necessary to detect and resolve conflicts and not used for other purposes. The opinion treats clerk-stage conflicts as non-imputed when the person is screened, and treats a screen as timely when it is in place before the person participates or receives confidential information about the matter.

Common questions

Q: Is a firm disqualified because it hired someone who worked on the other side as a law clerk?

A: Per Opinion #1, no. The opinion states clerk-stage conflicts are not imputed to other lawyers under Rule 1.10, provided the person is screened from the matter.

Q: When is a screen "timely"?

A: Per Opinion #2, when implemented as soon as practical after the firm knows or should know screening is needed, and before the person participates or any confidential information is communicated.

Q: Can the hiring firm ask a new lawyer or clerk which client matters they handled?

A: Per Opinion #3, yes, but disclosure must be no greater than reasonably necessary to detect and resolve conflicts, must not compromise privilege, and the information may not be used for other purposes.

Q: Can the former firm disclose the clients and matters the person worked on?

A: Per Opinion #4, yes, for the same conflict-detection purpose and subject to the same limits.

Background and rules framework

The opinion interprets North Carolina Rules of Professional Conduct 1.10 (imputation of conflicts; screening) and its Comment [4], Rule 1.0 (terminology; screening, Comments [9] and [10]), Rule 1.7 (current-client conflicts; reasonable procedures in Comment [3]), and Rule 1.6(a)-(b) (confidentiality and the exception to comply with the Rules). These correspond to ABA Model Rules 1.10, 1.0, 1.7, and 1.6. It follows ABA Formal Opinion 09-455 on disclosure of conflicts information when lawyers change firms.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.0 / NC Rule 1.0 (screening; Comments [9]-[10])
• Model Rule 1.6 / NC Rule 1.6(a)-(b) (confidentiality; disclosure to comply with the Rules)
• Model Rule 1.7 / NC Rule 1.7 (current-client conflicts; reasonable procedures)
• Model Rule 1.10 / NC Rule 1.10 (imputation; screening of laterals and clerks)

Other opinions cited:

• ABA Formal Op. 09-455 (2009) (disclosure of conflicts information when lawyers change firms)

See also

• ABA Formal Op. 489: Notice When Lawyers Change Firms
• NC State Bar 2009 FEO 9: Conflict-Checking Data Retention

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2010-formal-ethics-opinion-12/

Original opinion text

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

After his second year of law school, a law student worked as a summer clerk for Law Firm A inRaleigh. One of the many projects Law Firm A assigned to the law student was legal research that was part of Law Firm A’s preparation of Lawsuit X.

After the law student graduated from law school, Law Firm B hired the now law graduate as an associate in its Chicago office. After the law graduate left Law Firm A, but before he joined Law Firm B, Law Firm A filed Lawsuit X. After Lawsuit X was filed, lawyers in the Charlotte office of Law Firm B were retained to defend the case.

The law graduate was unaware that Lawsuit X had been filed, or that Law Firm B had been retained to defend it. Before the law graduate joined Law Firm B, the firm asked him to provide information about the identity of the client matters he worked on at Law Firm A so that potential conflicts could be addressed. The law graduate contacted Law Firm A, which directed him not to disclose any information about matters he had worked on or clients for whom he had worked.

Law Firm A learned that law graduate was associated with Law Firm B in Chicago and moved to disqualify Law Firm B from Lawsuit X. Law Firm B established a screen immediately upon learning that law graduate had worked on Lawsuit X.

Inquiry #1:

Does law graduate have a conflict of interest that is imputed to the other lawyers in Law Firm B, disqualifying those lawyers from the representation of the defendant in Lawsuit X?

Opinion #1:

No. A law firm may hire a law graduate although the law firm is representing a client in a matter on which the law graduate previously worked for the opposing party while clerking at another law firm. Conflicts of interest created by work performed as a law clerk are not imputed to other members of a law firm under Rule 1.10. See Rule 1.10, cmt. [4]. Nevertheless, the law graduate should be screened from any participation in the matter. Id. (Note that Rule 1.10(c) allows a law firm to hire a lawyer who previously worked for the opposing party while employed at another law firm so long as the lawyer is timely screened from any participation in the matter and written notice is given to any affected former client.)

Inquiry #2:

Will a Rule 1.0(1) screen of the law graduate from Lawsuit X implemented when Law Firm B learned of law graduate’s involvement in Lawsuit X be deemed “timely” and protect the lawyers of Law Firm B from disqualification?

Opinion #2:

In order to be effective, screening measures must be implemented as soon as practical after a law firm knows or reasonably should know that there is a need for screening. Rule 1.0, cmt. [10]. The purpose of screening is to assure the affected parties that confidential information known by the disqualified individual remains protected. Rule 1.0, cmt. [9]. If the screen is implemented prior to any participation by the law graduate in the matter and prior to the communication of any confidential information, the purpose for the screening procedure will have been effectuated.

Inquiry #3:

Is it improper for a law firm to ask law graduates or graduates not yet admitted to the practice of law, who have worked as law clerks, to identify client matters on which they worked as law clerks so that the hiring law firm can identify potential conflicts of interest?

Opinion #3:

No. When a new law school graduate, or any new lawyer, joins a firm, the hiring firm has an obligation to protect their clients against harm from conflicts of interest. See Rule 1.7. Comment [3] to Rule 1.7 provides that, to determine whether a conflict of interest exists, a lawyer should adopt reasonable procedures to determine in both litigation and non-litigation matters the persons and issues involved. However, the identity of the persons and issues involved in a matter are protected client information under Rule 1.6(a).

Rule 1.6(a) of the Rules of Professional Conduct provides that a lawyer shall not reveal information acquired during the professional relationship with a client unless (1) the client gives informed consent; (2) the disclosure is impliedly authorized; or (3) one of the exceptions set out in Rule 1.6(b) applies. One of the exceptions set out in Rule 1.6(b) provides that a lawyer may reveal confidential information to comply with the Rules of Professional Conduct. Rule 1.6(b)(1).

The ABA Standing Committee on Ethics and Professional Responsibility recently opined that lawyers moving between firms should be permitted to disclose the persons and issues involved in a matter because the prohibition of such disclosure would preclude lawyers from conforming with the conflicts rules. ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 09-455 (2009). Similarly, it is appropriate for a law firm to ask an incoming law school graduate to provide sufficient information so that the hiring law firm can identify potential conflicts of interest.

However, as noted in the ABA opinion, “any disclosure of conflict information should be no greater than reasonably necessary to accomplish the purpose of detecting and resolving conflicts and must not compromise the attorney-client privilege or otherwise prejudice a client or former client.” Id. In addition, a lawyer or law firm receiving conflict information may not reveal such information or use it for purposes other than detecting and resolving conflicts of interest.

Inquiry #4:

Is a law firm that a law graduate worked for permitted to disclose to a different law firm the identity of clients and matters that the law graduate worked on at the law firm so that the hiring firm can identify potential conflicts of interest?

Opinion #4:

Yes. See Opinion #3.