NYSBA 1999-08-27

When a lawyer moves to a new firm, what client information may the lawyer disclose so the new firm can run conflict checks?

Short answer: The opinion concluded the new firm must seek, and the moving lawyer may disclose, the names of the lawyer's clients and (depending on the old firm's size) the old firm's clients for a reasonable period, as long as the information is not a client confidence or secret and disclosure does not breach the lawyer's contractual or fiduciary duties to the old firm.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 720: Conflict checks when a lawyer joins a new firm

Short answer: The new firm had to seek, and the moving lawyer could disclose, the names of the lawyer's clients and (depending on the old firm's size) the old firm's clients for a reasonable period, so long as the information was not a client confidence or secret and disclosure did not breach the lawyer's contractual or fiduciary duties to the old firm.

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.

View original opinion

Plain-English summary

The committee addressed what information a new firm (Firm B) must seek, and a moving lawyer may provide, about the lawyer's prior clients so the new firm can perform conflict checks. It started from the imputed-disqualification rule: under DR 5-108(A) a lawyer may not, absent consent, take on a matter adverse to a former client in the same or a substantially related matter, and under DR 5-105(D), if the moving lawyer is disqualified, every lawyer at the new firm is disqualified too. Because the Code provides no screening mechanism, hiring a lawyer who carries a conflict can disqualify the new firm from existing matters and expose it to fee forfeitures, ethics complaints, and malpractice claims.

The committee noted that the 1996 amendment adding DR 5-105(E) made conflict-checking systems mandatory: a firm must keep records of engagements and have a policy for checking proposed engagements against current and prior ones. The committee read that obligation to require a firm to add information about the representations of lawyers who join the firm, so a conflict check at hiring is now required, not merely prudent.

Balancing this against confidentiality, the committee held that the moving lawyer may disclose the names of clients the lawyer represented, and depending on the size of the old firm the names of the old firm's clients for a reasonable period, but only to the extent the information is not protected as a confidence or secret under DR 4-101. The committee cautioned that in some circumstances a client's identity itself, or the fact of a representation, can be a secret. Disclosure also may not violate the moving lawyer's contractual or fiduciary obligations to the old firm. Where the needed information cannot be shared without revealing a confidence or secret, the lawyer must obtain client consent or otherwise protect the information.

Currency note

This opinion was issued in 1999, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Must a firm run a conflict check before hiring a lateral lawyer?

A: The opinion concluded yes. It read DR 5-105(E), which made conflict-checking systems mandatory in 1996, to require a firm to add the incoming lawyer's prior representations to its system, so a hiring-stage conflict check is required.

Q: What client information may the moving lawyer disclose for the check?

A: The opinion concluded the lawyer may disclose the names of clients the lawyer represented, and depending on the old firm's size the old firm's clients for a reasonable period, but only where the information is not a confidence or secret and disclosure does not breach duties to the old firm.

Q: Can a client's identity itself be protected?

A: Yes. The opinion cautioned that in some circumstances the mere identity of a client, or the fact of the representation, may be a secret under DR 4-101 that cannot be disclosed without consent.

Background and rules framework

The opinion interpreted DR 5-108(A) (representation adverse to a former client), DR 5-105(D) (imputed disqualification), DR 5-105(E) (mandatory conflict-checking systems), and DR 4-101 (confidences and secrets) of New York's former Code of Professional Responsibility. The Model Rule analogues are Rule 1.9 (former clients), Rule 1.10 (imputation), and Rule 1.6 (confidentiality). New York replaced the Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.

Citations and references

Rules of Professional Conduct:

MR 1.6 (confidentiality of information)
MR 1.9 (duties to former clients)
MR 1.10 (imputation of conflicts of interest)
NY DR 5-108(A); DR 5-105(D), (E); DR 4-101(A), (B)

Source

Landing page: https://nysba.org/opinion-720/