When a firm hires a law school graduate who worked in a school legal clinic, can the firm take or keep matters against the clinic's former clients?

Plain-English summary

The opinion addresses a recurring hiring problem: a law school graduate represented clinic clients while a student, and a firm wants to hire her even though the firm represents, or may want to represent, parties adverse to those clinic clients. The committee, applying the former New York Code of Professional Responsibility, concludes that the firm generally may accept or continue the adverse representation, with safeguards in the higher-risk cases.

The committee starts from DR 5-108, which restricts a lawyer from handling a matter adverse to a former client in the same or a substantially related matter, and DR 5-105(D), which imputes that restriction to the lawyer's firm. The rules speak to "lawyers," but prior authority (ABCNY Formal Op. 1991-1; N.Y. State 794) applies the conflict principles to law students functioning as lawyers in clinics. So if a student represented a clinic client, the firm she joins generally cannot take a substantially related matter against that client without consent, unless the graduate did not personally represent the client and gained no material confidential information.

For the substantial, ongoing clinic representations, the committee endorses an ethical screen. Although the Code expressly authorizes screens only for former government lawyers and judges, the committee reasons that the Code does not regulate pre-admission conduct, and the Court of Appeals has rejected an irrebuttable presumption that all firm lawyers share one lawyer's confidences (Solow v. W.R. Grace; Kassis v. Teachers Insurance). A timely, adequate screen can therefore protect the former clinic client's confidences while preserving the graduate's mobility. The committee draws support from the Comment to ABA Model Rule 1.10, which treats pre-admission law-student work as ordinarily curable by screening.

Screening is not always enough. Where the graduate had substantial exposure to confidential information relevant to the firm's matter and the firm's size makes effective screening difficult, the firm may need the former client's consent, must decline or withdraw, or cannot hire (or must terminate) the graduate (N.Y. State 774). Separately, for limited, short-term clinic representations, DR 5-101-a (the New York analogue to Model Rule 6.5) may apply: if the graduate had no actual knowledge of a conflict when the limited representation began, the conflict is not imputed to the hiring firm.

In practice

The opinion was issued in 2009 and applies the former New York Code of Professional Responsibility, which the New York Rules of Professional Conduct replaced effective April 1, 2009; the screening analysis it describes maps onto current Rule 1.10 and the short-term-services provisions of Rule 6.5. Under the framework as it stood at the time, the opinion holds that a firm hiring a former clinic student should run a conflicts check that considers the substantial-relationship test and whether the graduate holds material confidences, and, where those triggers are present, implement a timely and adequate screen, considering factors like firm size, office layout, and file access in judging the screen's effectiveness.

Common questions

Q: Does hiring a former clinic student automatically disqualify the firm from matters against the clinic's clients?

A: No. The opinion concludes the firm generally may take or continue such matters; the restriction bites only when the matter is substantially related and the graduate personally represented the client or holds material confidences.

Q: When must the firm screen the new hire?

A: When the graduate's clinic work was substantial and ongoing and the interests are materially adverse in a substantially related matter, or the former clinic client shared confidences material to the firm's matter.

Q: Does the Code authorize screening for former law students?

A: The committee says the Code's silence is not dispositive, because it does not regulate pre-admission conduct, and concludes screening is appropriate here, drawing on Solow, Kassis, and the Comment to ABA Model Rule 1.10.

Q: What if screening cannot fully protect the former client's confidences?

A: Then, per N.Y. State 774, the firm may need the former client's consent, must decline or withdraw from the adverse matter, or cannot hire or must terminate the graduate.

Background and rules framework

The opinion interprets the former New York Code provisions DR 5-108 (former-client conflicts), DR 5-105(D) (imputation within a firm), DR 5-101-a (short-term limited pro bono services), DR 4-101 (confidences and secrets), and DR 9-101(B) (former government lawyers). These correspond to Model Rules 1.9 (duties to former clients), 1.10 (imputation), 6.5 (short-term limited legal services programs), and 1.6 (confidentiality). The committee treats a law student's pre-admission clinic work much as the Restatement and Model Rule 1.10 Comment treat non-lawyer employees, whose disqualification is ordinarily curable by screening.

Citations and references

Rules of Professional Conduct:

• MR 1.9 / NY DR 5-108 (duties to former clients)
• MR 1.10 / NY DR 5-105(D) (imputed disqualification)
• MR 6.5 / NY DR 5-101-a (short-term limited legal services)
• MR 1.6 / NY DR 4-101 (confidences and secrets)

Cases:

• Solow v. W.R. Grace & Co., 83 N.Y.2d 303 (1994), no irrebuttable presumption of shared confidences
• Kassis v. Teachers Insurance & Annuity Ass'n, 93 N.Y.2d 611 (1999), adequate screening can avoid imputation
• Mulhern v. Calder, 196 Misc. 2d 818 (Sup. Ct. Albany County 2003), screening of a tainted non-lawyer

Other opinions cited:

• ABCNY Formal Op. 1991-1; ABCNY Formal Op. 79-37; ABCNY Formal Op. 2006-2
• N.Y. State 720 (1999); N.Y. State 774 (2004); N.Y. State 794 (2006)
• ABA Model Rule 1.10 Comment; ABA Model Rule 6.5 Comment 4

See also

• NY State Bar Op. 1064: Former Judge Conflict and Firm Screening
• NY State Bar Op. 1105: Imputed Conflict From a Part-Time Public Defender
• NYC Bar Ethics Op. 2013-01: Duties to Prospective Clients / Beauty Contests

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-2009-03-conflicts-arising-when-hiring-law-school-graduates-who-participate-in-law-school-legal-clinics/
• Original PDF: https://www.nycbar.org/wp-content/uploads/2023/05/20071691-Formal_Opinion_2009-3_Conflicts_Arising_When_Hiring_Law_School_Graduates_Who_Participate_in_Law_School_Legal_Clinics.pdf