As a former assistant public defender, I once represented a murder defendant who later testified against a co-defendant under a plea deal. My future law partner currently represents that co-defendant. The co-defendant is willing to waive any conflict and have me screened. If I join the new firm, will my old conflict spread to the whole firm, and does screening fix it?

Plain-English summary

The inquiring attorney and a law partner planned to form a firm with a third attorney (Future Partner). Before entering private practice, the inquiring attorney worked as an assistant public defender and represented Defendant A on a murder indictment; Defendant A pleaded guilty and agreed to testify against co-defendant Defendant B. Future Partner currently represents Defendant B in that case. The inquiring attorney reported that Defendant B was willing to waive any potential conflict and that the inquiring attorney would be screened from Defendant B's matter at the new firm.

The panel applied Rule 1.10(b), quoted in full, which bars a firm from knowingly representing a person in the same or substantially related matter where an incoming lawyer previously represented a client with materially adverse interests to that person and acquired information protected by Rule 1.6 and Rule 1.9(b) material to the matter. It found Defendant A's and Defendant B's interests materially adverse and found the inquiring attorney had acquired protected, material information during the Defendant A representation, so the conflict imputes to the new firm under Rule 1.10(b).

The panel then applied Rule 1.10(d), which allows the affected client to waive a paragraph (b) disqualification, and concluded the new firm could continue representing Defendant B if Defendant A consents after consultation. It specifically noted Rule 1.10 does not provide for screening as a way to cure the disqualification on its own, contrasting Rule 1.11(a)(1), which does allow other firm lawyers to represent a client if a disqualified former government lawyer is screened and receives no fee from the matter. Client waiver is required under Rule 1.10; a firm may offer screening as a way of obtaining that waiver, or a client may request screening as a condition of the waiver, but screening alone does not substitute for consent. The panel also noted the inquiring attorney's continuing Rule 1.6 confidentiality obligation to Defendant A.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, Rule 1.10(b) imputes a lateral-hire lawyer's prior conflict to the entire new firm when the new matter is the same or substantially related to a matter where the lawyer previously represented a client whose interests are materially adverse to the new firm's client, and the lawyer holds protected, material information. The opinion draws a specific structural distinction from Rule 1.11: unlike the screening-and-no-fee mechanism available for former government lawyers under Rule 1.11(a)(1), Rule 1.10 requires the disqualification to be waived by the affected former client, with screening available only as a tool to help obtain that waiver, not as a standalone cure.

Common questions

Q: I represented a client in government practice, and now a colleague at my new firm represents someone whose interests are adverse to that former client in the same matter. Does my old conflict spread to the whole firm?

A: Yes, according to this opinion, if the matters are the same or substantially related, the interests are materially adverse, and you hold protected information material to the matter, per Rule 1.10(b).

Q: Can screening me off from the matter fix the imputed conflict by itself?

A: No, per this opinion. The panel held Rule 1.10 does not provide a standalone screening cure the way Rule 1.11 does for former government lawyers; the former client's waiver after consultation is required, though screening can be offered as part of obtaining that waiver.

Q: If the affected former client is willing to waive the conflict, is that enough?

A: Yes, under Rule 1.10(d) as applied here. The panel held the new firm may continue the representation once the former client (Defendant A) consents after consultation.

Background and rules framework

The opinion applies Rule 1.10(b), (d) (Imputed Disqualification: General Rule), the Model Rule counterpart of the same number, quoted in full, and contrasts it with Rule 1.11(a)(1) (Successive Government and Private Employment), which permits screening without client waiver for former government lawyers. It also references Rule 1.6 (confidentiality) and Rule 1.9(b) (use of former-client information) as the sources of the "protected information" that triggers Rule 1.10(b) imputation.

Citations and references

Rules of Professional Conduct:

• MR 1.10(b), (d) (Imputed Disqualification: General Rule) / RI Rule 1.10(b), (d)
• MR 1.11(a)(1) (Successive Government and Private Employment) / RI Rule 1.11(a)(1)
• MR 1.6 (Confidentiality of Information) / RI Rule 1.6
• MR 1.9(b) (Conflict of Interest: Former Client) / RI Rule 1.9(b)

See also

• Alabama State Bar Op. 1990-05: Imputed Disqualification as Applied to a District Attorney's Office
• Alabama State Bar Op. 1991-44: A DA's Office Prosecuting a Defendant and Screening of a Conflicted Assistant

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%202005-06.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Final

              Rhode Island Supreme Court Ethics Advisory Panel
                    Opinion No. 2005-06 Request No. 899
                             Issued June 3, 2005

FACTS:

    The inquiring attorney and his/her law partner wish to form a law firm with a third

attorney (Future Partner). Before entering private practice, the inquiring attorney worked
as an assistant public defender. While at the Public Defender’s office, the inquiring
attorney represented Defendant A in a murder indictment. Defendant A entered into a plea
agreement, agreeing to testify against a co-defendant, Defendant B. Future Partner
represents Defendant B in the case. The inquiring attorney informs the Panel that
Defendant B is willing to waive any potential conflict and that the inquiring attorney will
be screened from Defendant B’s matter.

ISSUE PRESENTED:

    Will the inquiring attorney’s conflict of interest be imputed to the proposed new

firm?

OPINION:

   The inquiring attorney’s conflict of interest will be imputed to the new firm under

Rule 1.10(b). The new firm would be permitted to continue to represent Defendant B
provided the inquiring attorney’s former client, Defendant A, consents after consultation.

REASONING:

    Rule 1.10 entitled “Imputed disqualification: General rule” applies to this inquiry.

In pertinent part, the rule states as follows:

           (b) When a lawyer becomes associated with a firm, the
           firm may not knowingly represent a person in the same or a
           substantially related matter in which that lawyer, or a firm
           with which the lawyer was associated, had previously
           represented a client whose interests are materially adverse to
           that person and about whom the lawyer had acquired
           information protected by Rules 1.6 and 1.9(b) that is
           material to the matter.
                                         ***
           (d) A disqualification prescribed by this rule may be
           waived by the affected client under the conditions stated in
           Rule 1.7.

Final 2005-06
Page 2

      The interests of Defendant A and Defendant B in the instant inquiry are

materially adverse. During the former representation of Defendant A, the inquiring
attorney acquired information protected by Rule 1.6 and 1.9(b) which would be material
to Defendant B’s matter. Therefore, under Rule 1.10(b) the inquiring attorney’s conflict
of interest would be imputed to the new firm.

      Rule 1.10(d) permits a disqualification prescribed by paragraph (b) to be waived

by the affected client. The new law firm could continue to represent Defendant B
provided Defendant A waives the conflict of interest after consultation.

       Rule 1.10 does not provide for screening around the affected attorney as a

method of curing a disqualification. Client waiver is required. Compare Rule 1.11 (a)(1)
(other lawyers in firm may represent a client if former government lawyer who is
disqualified is screened from any participation in the matter and is apportioned no part of
the fee therefrom.) However, a firm could offer screening as a way of obtaining a client’s
waiver, or a client may request screening as a condition of waiver.

      The Panel concludes that the inquiring attorney’s conflicts of interest are imputed

to the new firm under Rule 1.10(b). The new firm would be permitted to continue to
represent Defendant B provided Defendant A consents after consultation. The inquiring
attorney has a continuing obligation of confidentiality to Defendant A pursuant to Rule 1.6.