When a lawyer moves to a new firm, when is the lawyer (and the new firm) barred from handling matters adverse to a client of the old firm?
NY State Bar Ethics Opinion 723: Former-client conflicts when a lawyer changes firms
Short answer: Absent the former client's consent, a moving lawyer could not take on a matter adverse to a former client if the lawyer personally represented the client or acquired relevant confidences or secrets and the new matter was the same as or substantially related to the prior one; if the lawyer was disqualified, the new firm was too under DR 5-105(D).
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
The committee analyzed when a lawyer who moves from one firm to another, and the new firm, are disqualified from representing a client adverse to a client of the old firm. It worked from DR 5-108, which was amended effective June 30, 1999. DR 5-108(A) bars a lawyer who has represented a client from later representing another person in the same or a substantially related matter with materially adverse interests, or from using the former client's confidences or secrets, absent consent. The new DR 5-108(B) addressed a lawyer who did not personally represent the old firm's client: that lawyer is barred only where the new matter is the same or substantially related, the interests are materially adverse, and the lawyer acquired protected information material to the matter. Under DR 5-105(D), if the moving lawyer is disqualified, the entire new firm is disqualified.
The committee worked through several fact patterns. Where the moving lawyer personally represented the old client (meaning the lawyer obtained or had access to confidences or secrets), DR 5-108(A) applies and disqualifies the lawyer and the new firm absent consent. Drawing on Kassis v. Teachers Insurance and Solow v. W.R. Grace, the committee noted an irrebuttable presumption that a lawyer who represented a client obtained that client's secrets, but cautioned that even billing time on a matter is not always "representing" the client if the lawyer learned no facts and had no chance to acquire confidences. Where the lawyer did not personally represent the old client, DR 5-108(B) controls, and disqualification turns on whether the lawyer in fact acquired material confidences or secrets; the committee noted that a small, informal firm may support a presumption that the lawyer had access (Cardinale v. Golinello), while a large, departmentalized firm with segregated files may rebut it (Silver Chrysler Plymouth).
The committee also explained the "substantially related" test, tracing it to T.C. Theatre Corp. v. Warner Bros. It stressed that two matters are not substantially related merely because they share the same defendant or the same general subject (here, workers' compensation); the key factor is whether the lawyer did or could have obtained confidences or secrets that would be used against the former client in the new matter. General knowledge of law, or generally known information, does not disqualify. Finally, in a matter where the adverse employer was merely insured by the same carrier that had insured a former client's employer, the committee held DR 5-108 did not apply, because the insured employer (not the carrier) is the client, so the carrier was never the lawyer's or the old firm's client.
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. This opinion modified N.Y. State 638 (1992). 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: When is a lawyer who changes firms barred from a matter adverse to a former client?
A: The opinion concluded the lawyer is barred, absent consent, if the lawyer personally represented the client (or acquired relevant confidences or secrets) and the new matter is the same as or substantially related to the prior one.
Q: If the lawyer never worked on the old client's matter, can the new firm still be disqualified?
A: The opinion held that under DR 5-108(B) the lawyer is barred only if the new matter is substantially related and the lawyer actually acquired protected information material to it; if the lawyer is barred, DR 5-105(D) disqualifies the new firm too.
Q: Are two matters "substantially related" just because they involve the same defendant or the same field of law?
A: No. The opinion held the shared party or the same general subject does not by itself make matters substantially related; the controlling factor is whether the lawyer could use confidences or secrets from the prior matter against the former client.
Q: Does sharing the same insurance carrier create a conflict?
A: No. The opinion held the insured employer, not the carrier, is the client, so where the carrier was never the lawyer's or the old firm's client, DR 5-108 does not apply.
Background and rules framework
The opinion interpreted DR 5-108(A) and (B) (representation adverse to former clients), DR 5-105(D) (imputed disqualification), and DR 4-101(A) (definition of confidences and secrets) of New York's former Code of Professional Responsibility, as amended effective June 30, 1999. The Model Rule analogues are Rule 1.9 (duties to former clients) and Rule 1.10 (imputation of conflicts). 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 1.9 (duties to former clients)
- MR 1.10 (imputation of conflicts of interest)
- NY DR 5-108(A), (B); DR 5-105(D); DR 4-101(A)
Cases:
- Solow v. W.R. Grace & Co., 83 N.Y.2d 303 (1994), irrebuttable presumption for a sole practitioner
- Cardinale v. Golinello, 43 N.Y.2d 288 (1977), presumed access in a small, informal firm
- Silver Chrysler Plymouth v. Chrysler Motors Corp., 518 F.2d 751 (2d Cir. 1975), rebutting access in a large firm
- T.C. Theatre Corp. v. Warner Bros. Pictures, 113 F. Supp. 265 (S.D.N.Y. 1953), origin of the substantial-relationship test
Other opinions cited:
- N.Y. State 638 (1992): prior interpretation of DR 5-108, modified by this opinion
- N.Y. State 519 (1980): the insured, not the insurer, is the client
See also
- NY State Bar Op. 720: Conflict checks and information disclosure for a moving lawyer
- NY State Bar Op. 1195: No duty to former firm clients who did not retain you
- NY State Bar Op. 794: Law school clinic project conflicts and imputation
Source
- Landing page: https://nysba.org/opinion-723/