After withdrawing because of a conflict of interest, can a law firm refer the former client to specific new attorneys?

Plain-English summary

The inquiring firm determined it had a conflict of interest with an existing client and was moving to withdraw, retaining no financial interest in the client's case. It asked whether, after withdrawing, it could refer the former client to specific attorneys it believed appropriate, or whether it could only recommend that the client seek other counsel (¶¶ 1-2).

The committee began by noting the Rules do not require a lawyer to provide specific referrals when a conflict arises; the opinion addresses the considerations when a lawyer chooses to do so in good faith. Although no rule directly addresses the question, Rule 1.16(e) requires a withdrawing lawyer to take steps to avoid foreseeable prejudice to the client, including allowing time to employ other counsel. A good-faith recommendation of appropriate new counsel is consistent with that duty: it reduces potential prejudice, helps the client find counsel more quickly, and gives the client the benefit of the firm's judgment, while leaving the client free to accept or reject it (¶¶ 3-8).

The committee then considered the continuing client whose representation caused the conflict. Rule 1.1(c)(2) bars intentionally prejudicing or damaging one's own client, but the committee did not view a good-faith referral of competent counsel to the former client as that kind of prejudice, drawing support from Rule 4.3 (which lets a lawyer advise an unrepresented person with a potential conflict to seek counsel) and from D.C. Opinion 326 (2004), which reasoned that the person would almost certainly find a lawyer anyway and that competent opposing counsel can aid a reasonable resolution (¶¶ 9-12).

The committee added cautions. Before making a specific referral the lawyer should consider whether professional judgment is affected under Rule 1.7(a)(2); if the lawyer reasonably believes it is, the referral is impermissible. Rule 1.9(c)(1) likewise bars acting to the former client's disadvantage. The committee noted practical considerations from the D.C. opinion (client relations, possibly offering several names) and stressed the referral itself must comply with the rules, including Rule 7.2 (¶¶ 13-18).

In practice

Under the New York rules as they stood at the time of the opinion, the opinion holds that a firm withdrawing for a conflict may provide the former client a good-faith referral to attorneys it believes appropriate to handle the matter. Per the opinion, this is consistent with Rule 1.16(e), and a good-faith referral of competent counsel is not the kind of prejudice to the continuing client barred by Rule 1.1(c)(2). The committee conditioned the referral on the lawyer's professional judgment not being impaired under Rule 1.7, on not disadvantaging the former client under Rule 1.9(c)(1), and on the referral complying with the rules, including Rule 7.2.

Common questions

Q: Must a withdrawing firm refer the client to a specific lawyer?

A: No. The committee noted the Rules do not require providing specific referrals; the opinion addresses what applies if the firm chooses to do so in good faith (¶ 3).

Q: Can the firm name specific attorneys, not just say "get other counsel"?

A: Yes. The committee concluded a good-faith referral to attorneys the firm believes appropriate is consistent with Rule 1.16(e)'s duty to avoid prejudice (¶¶ 5, 18).

Q: Does referring the former client harm the continuing client whose matter caused the conflict?

A: Not in the committee's view. It did not treat a good-faith referral of competent counsel as the prejudice barred by Rule 1.1(c)(2), citing Rule 4.3 and D.C. Opinion 326 (¶¶ 10-12).

Q: When would such a referral be impermissible?

A: If the lawyer reasonably believes the referral would impair their professional judgment under Rule 1.7(a)(2), or would disadvantage the former client under Rule 1.9(c)(1) (¶¶ 13-14).

Background and rules framework

The opinion interprets New York Rule 1.16(e) (duties on withdrawal), Rule 1.1(c)(2) (not intentionally prejudicing one's client), Rule 1.7 (concurrent conflicts and impaired judgment), and Rule 1.9(c)(1) (not disadvantaging a former client), corresponding to ABA Model Rules 1.16, 1.1, 1.7, and 1.9. The analysis turns on whether a good-faith referral serves the former client without improperly prejudicing the continuing client.

Citations and references

Rules of Professional Conduct:

• MR 1.16 / NY RPC 1.16(e) (avoiding prejudice on withdrawal)
• NY RPC 1.1(c)(2) (not intentionally prejudicing or damaging the client)
• MR 1.7 / NY RPC 1.7(a)(2) (impaired professional judgment)
• MR 1.9 / NY RPC 1.9(c)(1) (not disadvantaging a former client)

Other opinions cited:

• D.C. Opinion 326 (2004): a lawyer may recommend specific counsel to a person adverse to an existing client
• N.Y. State 338 (1974): a disqualified lawyer may not take a referral fee from the recommended lawyer
• N.Y. State 745 (2001): referrals must comply with the rules

See also

• NY State Bar Op. 1067: Duties to a prospective client adverse to an existing client
• NY State Bar Op. 1057: Disclosing client information on a motion to withdraw
• NY State Bar Op. 1122: A lawyer serving as a foster parent

Source

• Landing page: https://nysba.org/ethics-opinion-1018/