Can lawyers who belong to two or more law firms avoid imputing each firm's conflicts to the others by screening and limiting one firm's practice?
NY State Bar Ethics Opinion 876: Conflicts Across Multiple Firms
Short answer: When a lawyer is associated as a partner, associate, or of counsel with more than one firm, all of those firms are treated as one for conflicts purposes, so every firm's conflicts are imputed to all of them, and a screen, no matter how elaborate, cannot avoid that imputation.
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
Two partners of the ABC firm and two partners of the MNO firm (separate firms over 200 miles apart, with no shared offices or common lawyers) planned to form a third firm, XYZ, whose sole practice would be writing title opinions for mineral estates. To try to avoid imputing conflicts among the three firms, the common members would agree not to disclose XYZ's confidential information, XYZ would keep its files electronically and in locked cabinets accessible only to XYZ lawyers, and XYZ would obtain its clients' informed consent to the arrangement. The committee was asked whether this screening, combined with limiting XYZ's practice, could avoid imputation; it concluded it could not (paragraphs 1 through 4).
Under Rule 1.10(a), while lawyers are associated in a firm, none may take a matter that any one of them practicing alone would be barred from under Rules 1.7, 1.8, or 1.9. For decades the committee and New York courts have treated a lawyer "associated" with more than one firm as making all of those firms one firm for conflicts, so all conflicts in each firm are imputed to all lawyers in the associated firms (citing N.Y. State 807, 794, 793, 715, 388; Cinema 5 v. Cinerama). It follows that associated firms must also check for conflicts as a single unit under Rule 1.10(e) (paragraphs 5 through 8).
The committee held screening, as defined in Rule 1.0(t), could not avoid imputation here for two reasons. First, in adopting the Rules, the Appellate Divisions rejected the State Bar's recommendation to permit screening as a substitute for client consent. Second, XYZ's screen would prevent ABC and MNO from fulfilling their Rule 1.10(e) duty to check proposed engagements against the associated firm's current and prior engagements, leaving them unable to detect Rule 1.7 or 1.9 conflicts or to obtain informed consent. Limiting XYZ's practice to a discrete area did not cure these defects, because Rule 1.10(a) and (e) do not turn on whether a firm's practice is broad or narrow (paragraphs 9 through 13).
Finally, the committee considered waiver under Rule 1.10(d), which allows an imputed disqualification to be waived under the conditions of Rule 1.7, including each affected client's informed consent. That condition could not be met because the screen would keep ABC and MNO from learning the names of XYZ's clients and the nature of their matters, so they could not obtain informed consent. The committee concluded that lawyers associated as partners, associates, or of counsel cannot avoid imputation by screening or by limiting one firm's practice (paragraphs 14 through 15).
In practice
The opinion holds that, under Rule 1.10 as it stood at the time (which the committee noted is substantively the same as the former Code), a lawyer who is associated with two or more firms collapses them into one for conflicts: every firm's conflicts are imputed to all, and all must run conflicts checks as one unit. The committee gave two grounds that screening cannot change this: the Appellate Divisions rejected screening as a substitute for consent when they adopted the Rules, and a screen defeats the associated firms' own Rule 1.10(e) duty to check engagements and their ability to obtain the informed consent that Rule 1.10(d) would require to waive the imputation. It added that confining one firm to a narrow practice area does not alter the analysis.
Common questions
Q: I want to belong to two firms but wall off each firm's files. Does that avoid imputing conflicts?
A: No. The committee held that a lawyer associated with two or more firms makes them one for conflicts, and screening cannot avoid the imputation under Rule 1.10(a) (paragraphs 9, 15).
Q: What if the second firm only does one narrow type of work?
A: That does not change the result. The committee held Rule 1.10(a) and (e) do not depend on whether a firm's practice is broad or narrow (paragraph 13).
Q: Can the clients just consent to waive the imputed conflicts?
A: Not here. The committee held that because the screen hides the clients' identities and matters from the other firms, those firms cannot obtain the informed consent Rule 1.10(d) and Rule 1.7 require (paragraph 14).
Q: Why does New York reject screening when some jurisdictions allow it?
A: The committee noted that, in adopting the Rules, the Appellate Divisions rejected the State Bar's recommendation to permit screening as a substitute for client consent (paragraph 11).
Background and rules framework
The opinion interprets New York Rule 1.10(a), (d), and (e) (imputation of conflicts, waiver, and the firm-wide conflict-checking duty), read with Rules 1.7 and 1.9 (the underlying concurrent and former-client conflicts) and the Rule 1.0(t) definition of "screening," corresponding to ABA Model Rules 1.7, 1.9, and 1.10. The analysis turns on New York's decision not to adopt screening as a substitute for consent.
Citations and references
Rules of Professional Conduct:
- MR 1.10 / NY Rule 1.10(a), (d), (e): imputation of conflicts, waiver, and the firm-wide conflict-checking system
- MR 1.7 / NY Rule 1.7: concurrent conflicts and informed consent
- MR 1.9 / NY Rule 1.9: duties to former clients
- NY Rule 1.0(t): definition of "screened" or "screening"
Cases:
- Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384 (2d Cir. 1976), a partner in two firms is treated as associated with both for conflicts
Other opinions cited:
- N.Y. State 807 (2007), 794 (2006), 793 (2006), 715 (1999), 388 (1975): a lawyer associated with two firms makes them one for conflicts
See also
- NY State Bar Ethics Op. 881: Spouses Sharing Office Facilities
- NY State Bar Ethics Op. 890: Disqualification of Spouses Practicing in Different Firms
- NY State Bar Ethics Op. 895: Spousal Conflicts of Interest
Source
- Landing page: https://nysba.org/ethics-opinion-876/