When a lawyer switches firms in Nevada, when is the new firm conflicted out, and can screening cure it?

Plain-English summary

The Committee answered six questions about conflicts when a lawyer moves between private firms, applying the Nevada Rules of Professional Conduct effective May 1, 2006. A laterally moving lawyer is personally disqualified under Rule 1.9 from representing a person whose interests are materially adverse to a former client in the same or a substantially related matter if the lawyer represented that client at the former firm (Rule 1.9(a)) or otherwise acquired material confidential information about the matter (Rule 1.9(b)), unless the former client gives informed consent confirmed in writing. A lawyer who had no role and acquired no material confidential information is not personally disqualified.

When the moving lawyer is personally disqualified, Rule 1.10(a) imputes the disqualification to every lawyer in the new firm absent the former client's written informed consent (citing Brown v. Eighth Judicial District Court and Nevada Yellow Cab v. Eighth Judicial District Court). Separately, under Rule 1.10(b)-(c), after a lawyer leaves, the former firm may not take a matter adverse to that lawyer's former client if any remaining lawyer holds material confidential information, unless the affected client waives under Rule 1.7.

On screening, the Committee explained that the traditional rule barred screening to cure imputed disqualification, but in 2006 Nevada adopted Rule 1.10(e), a Nevada-specific provision (with no ABA analogue) allowing a limited screen to remove imputation, even without former-client consent, when the moving lawyer did not have a substantial role in or primary responsibility for the matter, is timely screened, is apportioned no part of the fee, and prompt written notice is given to the affected former client. Where the lawyer did have a substantial role (for example, lead or second-chair counsel), screening cannot cure the imputation and only the former client's Rule 1.7 waiver will. The Committee added that screening under Rule 1.10(e) is limited to the lateral-movement situation, not firm mergers or multi-city firms, and set out the minimum elements of an effective ethical screen under Rule 1.0(k): a written agreement by the screened lawyer not to participate or discuss the matter, written notice to firm personnel, isolation of files and communications, periodic re-circulation of the notices, and, where appropriate, an affirmation to the tribunal.

In practice

The opinion holds that, under the Nevada rules as adopted in 2006, a lateral lawyer's Rule 1.9 conflict is imputed to the entire new firm under Rule 1.10(a) unless the former client gives written informed consent, with one Nevada-specific exception: Rule 1.10(e) permits a timely screen to cure the imputation without consent only when the moving lawyer had no substantial role in or primary responsibility for the matter, takes no part of the fee, and prompt written notice is given. Where the lawyer had a substantial role, only a Rule 1.7 waiver removes the bar. Because Rule 1.10(e) is Nevada-specific and the rules can change, verify the current text before relying on screening.

Common questions

Q: If I move firms, can my new firm stay on a case against my old client?

A: Only with consent or a valid screen. The opinion concluded that if you are personally disqualified under Rule 1.9, the conflict is imputed to the whole new firm under Rule 1.10 unless the former client gives written informed consent or Nevada's Rule 1.10(e) screening exception applies.

Q: When does screening actually cure the conflict in Nevada?

A: Per the opinion, Rule 1.10(e) allows screening without former-client consent only if the moving lawyer did not have a substantial role in or primary responsibility for the matter, is timely screened, is apportioned no part of the fee, and prompt written notice is given to the affected former client.

Q: Does screening work for firm mergers or multi-city firms?

A: No. The opinion concluded the Rule 1.10(e) screening exception is limited to a laterally moving lawyer; in mergers or multi-city firms, where at least one lawyer had a substantial role, screening cannot remove the imputed disqualification.

Q: What makes a screen effective?

A: The opinion lists minimum elements under Rule 1.0(k): the screened lawyer's written agreement not to participate or discuss the matter, written notice to firm personnel, isolation of files and communications, periodic re-circulation of the notices, and, where appropriate, an affirmation to the tribunal.

Background and rules framework

The opinion interprets Nevada Rule of Professional Conduct 1.9 (duties to former clients), Rule 1.10 (imputation of conflicts, including the Nevada-specific screening provision 1.10(e)), Rule 1.7 (current-client conflicts and waiver), and the screening definition in Rule 1.0(k), all under the rules effective May 1, 2006.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 / Nev. RPC 1.9 (duties to former clients)
• Model Rule 1.10 / Nev. RPC 1.10 (imputation of conflicts; Nevada-specific screening at 1.10(e))
• Model Rule 1.7 / Nev. RPC 1.7 (current-client conflicts; waiver)
• Model Rule 1.0(k) / Nev. RPC 1.0(k) (definition of screening)

Cases:

• Brown v. Eighth Judicial District Court, 116 Nev. 1200, 14 P.3d 1266 (2000) (imputed disqualification; screening traditionally barred)
• Nevada Yellow Cab v. Eighth Judicial District Court, 123 Nev. (Adv. Op. 6), 152 P.3d 737 (2007) (imputation)
• Liebowitz v. Eighth Judicial District Court, 119 Nev. 523, 78 P.3d 515 (2003) (screening of laterally moving nonlawyers)

See also

• NV Ethics Op. 58: prospective conflict waivers
• NV Ethics Op. 25: duties to a former client

Source

• Landing page: https://nvbar.org/for-lawyers/ethics-discipline/ethics-opinions/
• Original PDF: https://nvbar.org/wp-content/uploads/opinion_39.pdf