If a partner from an opposing law firm joins our firm, must we stop representing the clients we have against that firm's client?

Plain-English summary

A large firm that represented plaintiffs in toxic-substance litigation was considering offering a partnership to a lawyer who was then a partner at the firm defending the company those plaintiffs were suing. The lateral lawyer concentrated in corporate, commercial, and insolvency work and had done no work for and billed no time to the company. He had, however, attended firm meetings discussing the defense and participated in or was present during conversations about plaintiff's counsel's activities, the identity of a defense witness, the company's commitment of financial resources, the staging of a mock trial, and an industry-wide computer network.

The inquiring firm asked whether the Rules would require it to stop representing its plaintiffs once the lawyer joined. The Committee concluded that the firm's continued representation of the plaintiffs would not be permitted if the lawyer joined the firm, unless the consent of the plaintiffs and the company is obtained. It rested that conclusion on RPC 1.10(b) and the New Jersey Supreme Court's decision in Dewey v. R.J. Reynolds Tobacco Co.

Currency note

This opinion was issued in 1992, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct. Subsequent rule amendments and later opinions on imputed disqualification and lateral movement may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: A lateral partner is joining from the firm on the other side of our case. Can we keep the case?

A: Per the opinion, not without consent. The Committee concluded that once the partner joins, the firm could not continue representing the plaintiffs against the company his former firm defended unless the plaintiffs and the company consent, citing RPC 1.10(b) and Dewey v. R.J. Reynolds Tobacco Co.

Q: Does it matter that the partner never billed the company or worked its case directly?

A: The Committee's facts noted the partner did no work for and billed no time to the company, but he had attended firm meetings about the defense and participated in conversations about strategy, witnesses, and resources; on those facts it found the representation barred absent consent.

Q: What would let the firm keep the cases?

A: Per the opinion, obtaining the consent of the affected clients, the plaintiffs and the company. The Committee cited RPC 1.10(b) and Dewey v. R.J. Reynolds Tobacco Co.

Background and rules framework

The opinion applied New Jersey RPC 1.10(b) (imputed disqualification arising when a lawyer changes firms; Model Rule 1.10) together with the conflict principles of RPC 1.9 (duties to former clients; Model Rule 1.9). It relied on the New Jersey Supreme Court's decision in Dewey v. R.J. Reynolds Tobacco Co., which addressed disqualification arising from a lawyer's prior exposure to an adversary's confidences.

Citations and references

Rules of Professional Conduct:

• MR 1.10 / NJ RPC 1.10(b) (imputed disqualification on changing firms)
• MR 1.9 / NJ RPC 1.9 (duties to former clients)

Cases:

• Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201 (1988), disqualification from prior exposure to an adversary's confidences

See also

• NJ ACPE Op. 678: Representing an Adversary Attorney in an Unrelated Matter
• NJ ACPE Op. 743: Imputing Personal-Interest Conflicts

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp667-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

1 N.J.L. 1704, November 2, 1992

132 N.J.L.J. 522, November 2, 1992

OPINION 667

Imputed Disqualification: Employment of Partner in Adverse Firm

A large law firm, which represents a number of persons who suffer from a disease allegedly caused by a toxic substance informs this Committee that it is considering extending an offer of partnership to an attorney who is a partner in another law firm that represents a company in litigation instituted by the inquiring law firm.

According to the inquirer, the attorney in question concentrates in corporate, commercial and insolvency law at his present firm and would do so at the inquiring firm as well. He has done no work for and billed no time to the company represented by his firm. As a partner in the firm, he does, however, share in the profits of the firm, which include income from the toxic substance defense cases. Before the firm was first engaged by the company, the attorney attended firm meetings at which members of the firm discussed a potential "alternate causation" defense by other clients of the firm, the viability of such defense and the propriety of representing the company in light of that defense. After the firm undertook the representation of the company, he participated in and/or was present during conversations with the partner in his firm with primary responsibility for the defense of the matters concerning various aspects of those and other toxic substance cases. These conversations related, among other things, to (1) certain of the activities of plaintiff's counsel (the inquiring firm) in one of the cases and the contentions of the plaintiff; (2) the identity of a company witness who was expected to testify to disprove one of the plaintiffs' contentions; (3) the commitment by the company of substantial financial resources to the defense of the case; and (4) the staging of a mock trial prior to the actual trial of a matter which has been remanded for a new trial. In addition, as a result of discussions with the administrator of the firm, the attorney is aware of the existence of an industry-wide computer network.

In light of the foregoing assumed facts, the inquirer asks the following questions: (1) Would the Rules of Professional Conduct require it to cease representing the plaintiffs suing the company represented by the attorney's firm if and when the attorney joins the inquiring firm? and (2) Would the inquirer be required under the Rules of Professional Conduct to cease representing the plaintiffs suing the companies not representing by the attorney's firm if and when the attorney joins the firm?

We conclude that the inquirer's continued representation of the two plaintiffs would not be permitted if the attorney joins the firm, unless the consent of the plaintiffs and the company is obtained. See RPC 1.10(b) and Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 221 (1988).