Do conflicts of interest from a New York law firm's hire of an unadmitted summer law clerk, intern, or law-school graduate get imputed to the firm under Rule 1.10? What confidentiality steps does the firm have to take?

Plain-English summary

The committee addresses divergent firm practices: some treat unadmitted summer law clerks, interns, and recent graduates as incoming lawyers for conflicts purposes; others treat them as nonlawyers whose prior work cannot be imputed. The opinion adopts the second view.

Rule 1.10 governs imputation of conflicts. Rule 1.10(a) imputes individual lawyer disqualifications across the firm. Rule 1.10(c) prohibits a firm from knowingly representing a client in a matter substantially related to a matter in which a "newly associated lawyer" formerly represented an adverse client, unless the newly hired lawyer did not acquire material confidential information. The committee notes that New York's Rule 1.10 currently has no screening provision for cross-firm lateral hires (citing Simon's New York Rules of Professional Conduct Annotated § 1.10:12), so an imputed conflict can only be cured by informed client consent under Rule 1.10(d). The committee references the pending New York Office of Court Administration July 2, 2024 proposal that would add a screening provision to Rule 1.10(a).

By its text, Rule 1.10 applies to "lawyers" associated in a firm. Comment 4 expressly excludes nonlawyers (paralegals and legal secretaries are given as examples). N.Y. State Op. 905 (2012) reached the same conclusion when a firm's newly hired lawyer had earlier worked as a paralegal at a different firm: such persons are not "associated" with a firm and do not "represent" clients in the Rule 1.10 sense. The committee extends this to unadmitted law clerks, interns, and recent graduates. Their pre-admission work cannot be imputed to the hiring firm; the test is the nature of the individual's role at the time the work was performed, not the individual's subsequent admission to the bar.

The opinion treats confidentiality as a separate, fully applicable duty. Rule 1.6 governs the confidentiality duty; Rules 5.1 and 5.3 require lawyers and firms to make reasonable efforts to ensure subordinate lawyers and nonlawyers comply with the Rules. Per N.Y. State Op. 905, the firm must make "reasonable efforts" calibrated to the new hire's prior role: if the hire played more than a ministerial role in a matter at a prior employer, the firm should perform a contextual conflicts check and screen the new hire from any personal participation in the matter. The committee identifies what reasonable steps may include: inquiring into the nature of the prior employment, the depth of involvement in confidential matters, whether the individual actually obtained confidential information, and screening from related firm matters when appropriate. Screens should be implemented as soon as practicable, citing Rule 1.0 Comment 10.

The opinion separately addresses students participating in law school clinics operating under a court's Student Practice Order. Section 478 of the New York Judiciary Law generally limits the practice of law to admitted lawyers, but clinical students under approved programs may engage in otherwise prohibited representational activities. The committee builds on NYC Bar Op. 2009-3, which held that clinical-student work is treated as "functioning as a lawyer." The Op. 2009-3 framework distinguishes substantial-and-ongoing clinical responsibility (which may require an ethical screen at a hiring firm, and in extreme cases may require declining or withdrawing from the adverse representation if a screen is inadequate) from limited single-meeting clinical encounters (which trigger no special measures absent a known conflict).

On the special problem of New York's Rule 1.6 not including the ABA's "detect and resolve conflicts" exception (ABA Model Rule 1.6(b)(7)), the committee notes that Comments 18A through 18F to N.Y. Rule 1.6 still permit disclosure of basic information (client identities, brief status, financial terms, payment information, publicly available information) for lateral move or law firm merger purposes. In settings where even client identity is sensitive (the opinion gives a clinic representing undocumented immigrants as an example), the committee accepts that the firm may act reasonably by requiring the new hire to notify the firm of any matters implicating the prior work, at which point a screen can be put in place.

In practice

Under this opinion, a New York firm hiring an unadmitted summer law clerk, intern, or recent graduate is not required to run a Rule 1.10 imputed-conflicts check or seek the prior employer's clients' informed consent for matters the new hire worked on before admission. Per the opinion, the firm's affirmative duty is to protect confidential information the new hire may have obtained at a prior employer, calibrated to the nature of that prior role: inquiry into the prior employment, identification of any confidential information in play, and a screen if the new hire's role was more than ministerial. Per the opinion, the analysis does not change retroactively when the unadmitted hire later gains bar admission; only post-admission work triggers Rule 1.10. Clinical students under a Student Practice Order are governed by the NYC Bar Op. 2009-3 framework.

Common questions

Q: Does a New York firm need to run a Rule 1.10 conflicts check before hiring a summer associate or intern?

A: The opinion concludes no. Per Rule 1.10's text and Comment 4 (and N.Y. State Op. 905), Rule 1.10 applies to "lawyers associated in a firm," and unadmitted students and graduates are nonlawyers. The committee qualifies this with a confidentiality-focused inquiry under Rules 1.6 and 5.3, calibrated to the new hire's prior role.

Q: Can a screen cure a Rule 1.10 conflict in New York?

A: The opinion concludes generally no for now. N.Y. Rule 1.10, unlike many other jurisdictions, does not include a screening provision for cross-firm lateral hires; an imputed conflict is currently only curable by Rule 1.10(d)'s informed client consent in writing. The opinion references the pending OCA July 2, 2024 proposal that would add a screening provision; the opinion notes the proposed change would not affect its analysis of unadmitted students and graduates.

Q: What does the opinion require when the new hire previously worked at a law school clinic under a Student Practice Order?

A: The opinion applies NYC Bar Op. 2009-3's two-end-of-the-spectrum framework. For substantial, ongoing clinical work, the firm should use an ethical screen, and in some cases the firm may need to obtain client consent, decline or withdraw from the adverse representation, or not hire the clinical student, depending on whether a screen can be effective given the firm's size and the matter. For limited, single-meeting clinical contact, the opinion holds no special measures are required absent a known conflict.

Q: Once an unadmitted hire is admitted to the bar, do their prior pre-admission matters retroactively become Rule 1.10 issues?

A: No. Per the opinion, the rule turns on the individual's role at the time the work was performed. Pre-admission work as a nonlawyer does not become subject to Rule 1.10 when the person later takes the bar. Post-admission work is, of course, governed by Rule 1.10 if the individual later moves firms.

Q: How does the firm meet the confidentiality duty when Rule 1.6 prevents the new hire from disclosing prior-employer client information?

A: Per the opinion, basic information typically falls outside Rule 1.6 (the committee cites N.Y. Rule 1.6 Comment 18B, listing client identities, brief status, financial terms, payment data, and publicly available information). For sensitive contexts where even identity is confidential (e.g., a clinic representing undocumented immigrants), the firm may discharge its duty by requiring the hire to flag any internal matter implicating prior work, at which point a screen may be implemented.

Background and rules framework

The opinion interprets New York Rule 1.10 (imputation of conflicts; current text without lateral screening; current cure only via informed client consent under Rule 1.10(d)); Rule 1.0(h) (definition of "firm"); Rule 1.6 (confidentiality), Rule 5.3 (responsibilities regarding nonlawyer assistants); Rule 5.1 (supervision). The opinion draws on N.Y. State Op. 905 (2012) (paralegal-then-lawyer scenario), New York City Op. 2009-3 (clinical students), and Section 478 of the New York Judiciary Law (Student Practice Orders). The opinion references state and federal case law on screens in disqualification: Hempstead Video, Inc. v. Inc. Vill. of Valley Stream, 409 F.3d 127 (2d Cir. 2005); In re Jalicia G., 130 A.D.3d 402 (1st Dep't 2015); Kassis v. Teacher's Ins. & Annuity Ass'n, 93 N.Y.2d 611 (1999); Rolnitzky v. Tyrnauer, 2021 WL 2181207; and Lieberman v. Lieberman, 2021 N.Y.L.J. LEXIS 902.

Citations and references

Rules of Professional Conduct:

• N.Y. RPC 1.0(h), 1.0(t) (definitions)
• N.Y. RPC 1.6, Comments 18A-18F (confidentiality and lateral-move exceptions)
• N.Y. RPC 1.7, 1.9 (conflicts incorporated through 1.10)
• N.Y. RPC 1.10(a), (c), (d) (imputation and consent cure)
• N.Y. RPC 5.1, 5.3 (supervision)

Statutes:

• N.Y. Judiciary Law § 478 (unauthorized practice; Student Practice Order exception)

Cases:

• Hempstead Video, Inc. v. Inc. Vill. of Valley Stream, 409 F.3d 127 (2d Cir. 2005), screens permitted to cure conflict from laterally-hired of-counsel lawyer.
• Maricultura del Norte v. Worldbusiness Cap., Inc., 2015 WL 1062167 (S.D.N.Y. 2015), survey of Second Circuit screen cases.
• In re Jalicia G., 130 A.D.3d 402 (1st Dep't 2015), screening procedures sufficient.
• Mauriello v. Battery Park City Auth., 2018 WL 5255255 (Sup. Ct. N.Y. Cnty. 2018), screen sufficient despite significant prior involvement.
• Kassis v. Teacher's Ins. & Annuity Ass'n, 93 N.Y.2d 611 (1999), Rules do not establish a mandatory disqualification standard.
• Rolnitzky v. Tyrnauer, 2021 WL 2181207 (Sup. Ct. N.Y. Cnty. 2021), no imputed conflict from law-student work; screen.
• Lieberman v. Lieberman, 2021 N.Y.L.J. LEXIS 902 (Sup. Ct. Bronx Cnty. 2021), pre-admission intern work did not disqualify new firm.

Other opinions cited:

• New York State Op. 905 (2012): paralegal-then-lawyer scenario.
• NYC Bar Op. 2003-03: conflicts checks for lateral attorneys.
• NYC Bar Op. 2009-3: clinical students framework.
• NYC Bar Op. 1991-1 and 79-37: clinic-student conflict treatment.
• New York State Op. 794 (2006): clinics treated as law firms.
• New York State Op. 1186 (2020): screening's limited use to cure imputed conflicts.
• New York State Op. 774 (2004): law firm not required to search for nonlawyer-driven conflicts.
• Cal. Lawyers Assoc. Formal Op. 2023-1: nonlawyer-information acquisition under Cal. Rule 5.3.

See also

• NYC Bar Op. 2025-4: Contractual Limits on Attorney Discretion
• NY State Bar Op. 1293: Conflict Analysis for Per Diem Attorney
• NY State Bar Op. 1295: Solo Practice + NY Firm Job

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-2024-6-conflicts-and-hiring-of-summer-law-clerks-law-student-interns-and-law-school-graduates/
• Original PDF: https://www.nycbar.org/wp-content/uploads/2024/12/20221382-EthicsOpinion2024-6_SummerLawClerks.pdf