My law partner used to work at the firm defending the other side in a case I've now been asked to try for the plaintiff, and my partner deposed the plaintiff back then (though wasn't lead counsel). Can I take the case?

Plain-English summary

The inquiring attorney sought to serve as trial counsel for the plaintiff in a pending case. The attorney's law partner had formerly been associated with the law firm representing the defendant in that same case and, while there, had conducted a deposition of the plaintiff, though the partner was not lead counsel. The attorney asked whether he or she could represent the plaintiff at trial given the partner's prior involvement on the defense side.

The panel first found that the law partner has a disqualifying conflict under Rule 1.9(a), which bars a lawyer who formerly represented a client in a matter from later representing another person in the same or a substantially related matter where that person's interests are materially adverse to the former client, absent the former client's informed consent confirmed in writing. Because the partner represented the defendant by deposing the plaintiff in the very same case now at issue, the partner is disqualified from representing the plaintiff. The panel then turned to Rule 1.10(c), added in the Supreme Court's 2007 amendments, which permits screening when a lawyer disqualified under Rule 1.9 joins a new firm: no other lawyer in the firm may knowingly represent a person in the matter unless the personally disqualified lawyer is timely screened from any participation and is apportioned no part of the fee, and written notice is promptly given to the affected former client. The panel concluded the inquiring attorney may serve as trial counsel for the plaintiff under Rule 1.10(c), provided the partner is screened, receives no fee from the case, and the defendant (the affected former client) receives written notice, which the panel advised should be given through defense counsel, and directed the attorney to the definition of "screened" in Rule 1.0(k).

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion, a lawyer whose law partner is personally disqualified under Rule 1.9 from a matter because of the partner's prior representation at a former firm does not thereby disqualify the whole current firm from that matter, so long as Rule 1.10(c)'s conditions are met: timely screening of the disqualified partner from any participation in the matter, no fee-sharing with that partner from the matter, and prompt written notice to the affected former client (here, the defendant) so it can verify compliance.

Common questions

Q: My partner used to work on the other side of a case I've been asked to handle now. Am I automatically conflicted out?

A: Not necessarily, according to this opinion. While the partner is personally disqualified under Rule 1.9(a), Rule 1.10(c) lets the rest of the firm proceed if the partner is timely screened, apportioned no fee from the matter, and the affected former client is given prompt written notice.

Q: Does it matter that my partner wasn't lead counsel, just conducted one deposition?

A: No. The opinion treats the partner as having represented the defendant in the matter by conducting the deposition, which is enough to trigger Rule 1.9(a) disqualification regardless of the partner's role as lead or non-lead counsel.

Q: Who has to be notified, and how?

A: The opinion identifies the defendant, as the affected former client, as the party entitled to written notice under Rule 1.10(c)(2), and advises that notice be given through defense counsel.

Q: What counts as adequate "screening" under this rule?

A: The opinion directs the reader to the definition of "screened" in Rule 1.0(k) (Terminology) rather than restating it, since that definition governs what timely screening under Rule 1.10(c) requires.

Background and rules framework

The opinion interprets Rhode Island Rule 1.9(a) (Duties to Former Clients), which bars a lawyer from later representing an adverse party in the same or a substantially related matter absent the former client's informed written consent, and Rule 1.10(c) (Imputation of Conflicts of Interest: General Rule), a provision added in the Rhode Island Supreme Court's 2007 rule amendments that permits screening to avoid imputing a laterally hired lawyer's Rule 1.9 disqualification to the new firm, subject to timely screening, no fee apportionment to the disqualified lawyer, and prompt written notice to the affected former client. The opinion also references the "screened" definition in Rule 1.0(k).

Citations and references

Rules of Professional Conduct:

• MR 1.9(a) (duties to former clients; same or substantially related matter; materially adverse interests)
• MR 1.10(c) (imputation of conflicts; screening a laterally hired lawyer's Rule 1.9 disqualification)
• MR 1.0(k) (terminology; definition of "screened")

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• Alaska Bar Op. 78-3: Conflict of Interest When a Law Firm Represents a Defendant in an Action Filed by an Attorney Who Joined the Defendant's Law Firm Before Trial
• Alaska Bar Op. 83-5: Whether a Law Firm Representing a Defendant Is Disqualified Because It Hired an Associate Formerly Employed by Plaintiff's Firm
• Arizona Bar Op. 04-04: Conflicts of Interest; Public Defenders; Screening; Disqualification; Imputed Disqualification

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%202010-03.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. 2010-03 Request 974
                           Issued June 3, 2010

FACTS

    The inquiring attorney seeks to serve as trial counsel on behalf of a prospective

client who is the plaintiff in the case. The inquiring attorney's law partner was formerly
associated with the law firm that represents the defendant in the same case. While
employed at the former law firm, the inquiring attorney's law partner conducted a
deposition of the plaintiff, but was not the lead counsel in the case. The inquiring
attorney asks whether he/she may represent the prospective client.

ISSUE PRESENTED

   May the inquiring attorney serve as trial counsel on behalf of the plaintiff in a

case, where the inquiring attorney's law partner conducted a deposition of the plaintiff on
behalf of the defendant in the same case while formerly associated with another law firm?

OPINION

    Pursuant to Rule 1.10(c), the inquiring attorney may serve as trial counsel on

behalf of the plaintiff in the case, provided that his/her law partner is screened from
participation and is not apportioned any fee from the case, and provided further that the
defendant is notified.

REASONING

           The starting point for this inquiry is the determination of whether the

inquiring attorney's law partner has a conflict of interest under Rule 1.9. Rule 1.9 states
as follows:

           (a) A lawyer who has formerly represented a client in a
               matter shall not thereafter represent another person in
               the same or a substantially related matter in which that
               person's interests are materially adverse to the interests
               of the former client unless the former client gives
               informed consent, confirmed in writing.

Final Op. 2010-03
Page 2 of 2

          The Panel is of the opinion that the inquiring attorney's law partner has a conflict
  of interest pursuant to Rule 1.9(a). The case in which the inquiring attorney seeks to
  serve as trial counsel on behalf of the plaintiff is the same matter in which the law
  partner's former law firm represented the defendant. The law partner conducted a
  deposition of the plaintiff while associated with his/her former law firm. In doing so, the
  law partner represented the defendant in the matter. Therefore, the law partner is
  disqualified under Rule 1.9 from now representing the plaintiff.

          Rule 1.10 entitled "Imputation of conflicts of interest: General rule" is also
  pertinent to this inquiry. Rule 1.10(c), added to Rule 1.10 in the Supreme Court's 2007
  amendments to the Rules, is a special provision that addresses imputation of conflicts of
  interest when lawyers move from one law firm to another, and which now permits
  screening in this limited situation. It states:

                 (c) When a lawyer becomes associated with a firm, no
                 lawyer associated in the firm shall knowingly represent a
                 person in a matter in which that lawyer is disqualified
                 under Rule 1.9 unless:
                 (1) the personally disqualified lawyer is timely screened
                 from any participation in the matter and is apportioned no
                 part of the fee therefrom; and
                 (2) written notice is promptly given to any affected former
                 client to enable it to ascertain compliance with the
                 provisions of this Rule.

         The Panel concludes that pursuant to Rule 1.10(c) the inquiring attorney may
  serve as trial counsel on behalf of the plaintiff in the case, provided the law partner is
  screened from participation in the matter and is apportioned no fee from the case, and
  provided further that the defendant as the affected client is given written notice. The
  Panel advises that written notice to the defendant be made through defendant's counsel.
  The Panel refers the inquiring attorney to the definition of "screened" in section (k) of
  Rule 1.0 entitled "Terminology."