When a lawyer is of counsel to two firms, are one firm's conflicts imputed to the other firm's lawyers?
NY State Bar Ethics Opinion 793: How an of-counsel relationship cross-imputes conflicts between firms
Short answer: A lawyer who is of counsel to two firms makes them effectively one firm for conflicts purposes, so conflicts of either firm impute to the lawyers of the other, with a general exception for personal-interest conflicts under DR 5-101(A).
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
Attorney L has an of-counsel relationship with two separate firms (XYZ and ABC); in a parallel scenario, one firm (DEF) is of counsel to another firm (MNO). The committee was asked whether conflicts arising at one firm are imputed across the of-counsel link to the lawyers of the other firm, and whether the same holds when an entire firm, rather than a single lawyer, is the of-counsel party. The committee answers both questions yes.
An of-counsel relationship under DR 2-102(A)(4) is a close, regular, and continuing relationship, and the committee has held (N.Y. State 773) that an of-counsel lawyer is "associated" with the firm for imputation under DR 5-105(D). The committee reasons that the same access to confidences and the same loyalty concerns that impute a partner's conflict to the of-counsel lawyer carry through to the second firm with which that lawyer is associated. Although DR 5-105(D) lists only certain enumerated rules and L's own conflict derives from DR 5-105(D) rather than from an enumerated rule, the committee relies on its facts-and-circumstances approach (N.Y. State 670) and concludes that in most cases the conflict cross-imputes. The result aligns with N.Y. City 1996-8 and ABA Formal Op. 90-357, which treat firms sharing an of-counsel lawyer as a single unit for attribution of disqualifications.
The committee draws two important limits. First, personal-interest conflicts under DR 5-101(A) generally do not cross-impute: if a lawyer at one firm is disqualified because, for example, a relative is an officer of an adverse company, that personal conflict does not automatically disqualify lawyers at the other firm, though it might where the of-counsel lawyer is prominent and the firms are very small. Second, a relationship more attenuated than of counsel (contract work on a single matter, appearing as local counsel, or a one-off consultation) does not make the lawyer "associated" with the second firm, so those conflicts do not impute, though imputation can still be required where the lawyer actually had access to a client's confidences and secrets. The opinion also stresses the DR 5-105(E) record-keeping duty: a firm taking on an of-counsel lawyer must check both its own and the other firm's current and prior engagements on an ongoing basis. The opinion overrules N.Y. State 262 in part, since DR 2-102(A)(4) was amended in 1999 to allow a firm to be of counsel to another firm and a lawyer to be of counsel to more than one firm.
In practice
Under the New York Code as it stood at the time, the opinion holds that of-counsel relationships make the linked firms one firm for conflict imputation, so a conflict at either firm generally disqualifies the lawyers of both, and a single conflict-checking system should cover both. The committee identifies two carve-outs: most DR 5-101(A) personal-interest conflicts do not cross-impute, and relationships short of a genuine of-counsel tie (single-matter contract work, local counsel, one-off consultation) do not impute at all absent actual access to confidences. The committee frames extensive conflict checking across both firms' engagements as the practical consequence of forming the relationship.
Common questions
Q: If a lawyer is of counsel to two firms, do the firms' conflicts cross-impute?
A: Yes, generally. The committee concludes that conflicts imputed to the of-counsel lawyer under DR 5-105(D) impute to every firm with which the lawyer is of counsel, so the firms are treated as one for conflicts purposes.
Q: Does the cross-imputation apply when one firm is of counsel to another firm, not just one lawyer?
A: Yes. The committee sees no difference; otherwise a firm could escape imputation by designating its whole firm, rather than individual lawyers, as of counsel.
Q: Do personal-interest conflicts cross-impute the same way?
A: Usually not. The committee concludes a DR 5-101(A) personal-interest conflict of a lawyer at one firm does not automatically disqualify the other firm's lawyers, though it might where the of-counsel lawyer is prominent and both firms are very small.
Q: Does a contract lawyer or local counsel trigger the same imputation?
A: No. The committee holds that a relationship more attenuated than of counsel does not make the lawyer "associated" with the firm, so those conflicts do not impute unless the lawyer actually had access to the relevant client confidences and secrets.
Background and rules framework
The opinion applies New York's former Code of Professional Responsibility. DR 5-105(D) is the firm-wide imputation rule (analogous to Model Rule 1.10); DR 5-101(A) addresses personal, financial, business, and property-interest conflicts (a facet of Model Rule 1.7); DR 5-108 addresses duties to former clients (analogous to Model Rule 1.9); and DR 5-105(E) imposes the conflict-checking and record-keeping duty. DR 2-102(A)(4) governs the of-counsel designation on letterhead.
Citations and references
Rules of Professional Conduct:
- MR 1.10 (imputation of conflicts within a firm); NY DR 5-105(D)
- MR 1.7 (concurrent conflicts, including personal interest); NY DR 5-101(A), DR 5-105(A)
- MR 1.9 (duties to former clients); NY DR 5-108
- NY DR 2-102(A)(4) (of-counsel designation on letterhead); NY DR 5-105(E) (conflict-checking records)
Cases:
- Hempstead Video, Inc. v. Incorporated Village of Valley Stream, 409 F.3d 127 (2d Cir. 2005), no imputation where of-counsel title lacked a real continuing relationship
- Nemet v. Nemet, 112 A.D.2d 359 (1985), of-counsel relationship leads to imputed disqualification
Other opinions cited:
- N.Y. State 773 (2004): an of-counsel lawyer is "associated" with the firm for imputation
- N.Y. State 670 (1994): facts-and-circumstances test where the primary disqualification is not an enumerated rule
- ABA Formal Op. 90-357: firms sharing an of-counsel lawyer are a single firm for attribution
- N.Y. City 1996-8 / 1995-8: of-counsel relationships treated as one unit for conflicts
See also
- NY State Bar Op. 794: Law school clinic conflict imputation
- NY State Bar Op. 1137: Using and associating with of-counsel lawyers
- NY State Bar Op. 1141: Co-counsel conflict imputation
- NY State Bar Op. 1023: Of counsel to an out-of-state firm with a trade name
Source
- Landing page: https://nysba.org/ethics-opinion-793/