I used to supervise other legal-services attorneys, and now that I'm in private practice, am I automatically conflicted out of any case involving a client one of my former subordinates once represented?

Plain-English summary

The inquiring attorney recently left Rhode Island Legal Services, where he or she represented indigent parents in Family Court dependency, neglect, abuse, and termination-of-parental-rights cases and also supervised several other attorneys, and is now in private practice on the court-appointment list for Family Court and D.C.Y.F. cases and guardian-ad-litem appointments. The attorney states he or she will not represent a client whose D.C.Y.F. case would directly oppose a parent whom the attorney personally represented or supervised and about whom the attorney acquired specific knowledge, but is concerned about cases handled by subordinate attorneys about which the inquiring attorney has no specific knowledge or memory.

The panel applied Rule 1.9(b), added to the former-client rule in 2007, which bars knowingly representing a person in the same or a substantially related matter in which a firm the lawyer was formerly associated with represented a client materially adverse to that person, if the lawyer acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter, absent the former client's informed written consent. The panel explained that paragraph (b)(2) narrows disqualification to situations where the lawyer has actual knowledge of protected material information, not merely whether the two matters are the same or substantially related and the interests adverse; the test is not whether the lawyer remembers the case or client, but whether the lawyer actually acquired material information while at the former firm, which requires due diligence to assess. Quoting Comment 6 to Rule 1.9, the panel noted that whether a lawyer is presumed privy to a firm's client information depends on the lawyer's actual access and participation: a lawyer with general access to all client files and regular participation in discussions of their affairs is presumed privy to all such information, while a lawyer with access to only limited files is presumed privy only to those, with the burden of proof resting on whoever seeks disqualification.

Applying this framework to a supervising attorney, the panel found a reasonable inference that the inquiring attorney was privy to information about clients represented by attorneys under his or her supervision. Unless that presumption is rebutted, and the inquiring attorney can show no protected material information was acquired about a supervised attorney's case, a conflict exists if Rule 1.9(b)'s other elements are met, and the inquiring attorney should decline the prospective representation. Because the inquiring attorney did not present specific facts, the panel's guidance was general rather than case-specific.

In practice

The opinion holds that a former supervising attorney at a legal services organization is not automatically barred from later representing a person adverse to a client the attorney supervised (rather than personally represented); disqualification under Rule 1.9(b) requires that the new matter be the same as or substantially related to the earlier one, that the interests be materially adverse, and that the lawyer actually acquired protected information material to the matter, which for a supervisor carries a rebuttable presumption based on the scope of the supervisor's access to and participation in the supervised attorneys' cases.

Common questions

Q: I supervised other attorneys at my old job. Am I automatically conflicted out of cases they used to handle?

A: Not automatically, but the opinion holds there is a reasonable inference that a supervisor was privy to information about clients handled by attorneys under his or her supervision, a presumption the supervisor must rebut by showing no protected material information was actually acquired.

Q: Does it matter that I don't remember the specific facts of a case a subordinate handled?

A: No. The opinion holds the test is not whether the lawyer remembers the case or client, but whether the lawyer actually acquired material protected information while at the former firm; a lack of specific memory does not by itself defeat the presumption.

Q: What's the difference between a supervisor with general access to all files and one with access to only some files?

A: The opinion, quoting Comment 6 to Rule 1.9, states a lawyer with general access to all clients' files and regular participation in discussions of their affairs is presumed privy to all of that information, while a lawyer with access to only a limited number of files is presumed privy only to those clients actually serviced.

Background and rules framework

The opinion applies Rhode Island Rule 1.9(b) (Duties to Former Clients), added in 2007, which bars a lawyer from knowingly representing a person in the same or a substantially related matter in which a firm the lawyer was formerly associated with represented a client materially adverse to that person and about whom the lawyer acquired information protected by Rules 1.6 and 1.9(c) material to the matter, absent informed written consent. Comment 5 explains paragraph (b) operates only where the lawyer has actual knowledge of protected information. Comment 6 supplies the inferences used to assess a lawyer's actual access to a firm's client information based on the lawyer's role, with the burden on the party seeking disqualification.

Citations and references

Rules of Professional Conduct:

• MR 1.9(b) (imputed conflicts for a lawyer who changes firms; actual-knowledge requirement)
• MR 1.6 and 1.9(c) (confidentiality; information protected against use or disclosure)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• Alabama Ethics Op. 1993-03: Lawyer changing firms
• Alabama Ethics Op. 1990-05: Imputed disqualification rule as applied to district attorney's office
• ABA Formal Op. 510: Avoiding Imputation of a Prospective Client Conflict

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%2012-07.pdf

Original opinion text

Final

              Rhode Island Supreme Court Ethics Advisory Panel
                             Opinion No. 2012-07
                         Issued: September 10, 2012

FACTS

    The inquiring attorney recently left the offices of Rhode Island Legal Services and

is now in private practice. While employed at Rhode Island Legal Services, the inquiring
attorney represented indigent parents charged in Family Court with dependency, neglect or
abuse, or termination of parental rights. In addition to having his/her own caseload, the
inquiring attorney supervised several other attorneys.

   Since leaving Rhode Island Legal Services, the inquiring attorney has been

approved for and added to the list of attorneys who are eligible for court-appointment to
represent indigent clients in Family Court. The inquiring attorney states that he/she plans
to seek court appointments to represent clients in D.C.Y.F. cases, as well as being
appointed as guardian-ad-litem in both D.C.Y.F. and domestic cases, and to take cases in
other domestic matters. The inquiring attorney states that he/she will not represent a client
whose D.C.Y.F. case would involve direct opposition to a parent who was represented by
the inquiring attorney or by a supervised Rhode Island Legal Service's attorney, and about
whom the inquiring attorney had acquired specific knowledge. He/she also states that
he/she would not accept appointments as a guardian-ad-litem for children in such cases.
The inquiring attorney is concerned, however, about cases handled by subordinate
attorneys at Rhode Island Legal Services about which he/she acquired no specific
knowledge, or about which he/she has no specific memory.

ISSUE PRESENTED

   The issue presented by this inquiry is whether it would be a conflict of interest for

the inquiring attorney, a former Rhode Island Legal Service's supervising attorney, to
represent a person whose interests were adverse to a client who was represented by a
Rhode Island Legal Service's lawyer while the inquiring attorney was the lawyer's
supervising attorney.
Final Op. 2012-07
Page 2 of 3

OPINION

   Pursuant to Rule 1.9(b), the inquiring attorney is prohibited from representing a

person in the same or a substantially related matter in which another Rhode Island Legal
Service's lawyer, while under the supervision of the inquiring attorney, represented a client
whose interests are materially adverse to that person and about whom the inquiring
attorney actually had acquired protected information that is material to the matter.

REASONING

    A determination of whether a conflict of interest exists must be made on a case-by-

case basis, and must be based on specific facts. The inquiring attorney has not presented a
specific set of facts to the Panel, and therefore, the Panel's guidance for this inquiry is
general in nature.

   Paragraph (b) of Rule 1.9 entitled "Duties to former clients" applies to this inquiry.

Paragraph (b) states:

           (b) A lawyer shall not knowingly represent a person in the
           same or a substantially related matter in which a firm with
           which the lawyer formerly was associated had previously
           represented a client.
                  (1) whose interests are materially adverse to that
           person; and
                  (2) about whom the lawyer had acquired
           information protected by Rules 1.6 and 1.9(c) that is
           material to the matter; unless the former client gives
           informed consent, confirmed in writing.


    Paragraph (b) of Rule 1.9, added to the former-client rule in 2007, narrowed the

scope of imputation of conflicts of interest when lawyers move from one law firm to
another. Specifically, under paragraph (b)(2), even where a prospective client's matter and
the matter of a former law firm's client are the same or a substantially related matter (Rule
1.9(b)), and where also the interests of the prospective client and the former firm's client
are adverse (Rule 1.9(b)(1)), a lawyer would not have a conflict of interest unless he or she
also had acquired protected information that is material to the matter. Paragraph (b),
therefore, operates to disqualify a lawyer only when the lawyer has actual knowledge of
information protected by Rules 1.6 and Rule 1.9(c). Rule 1.9, Comment [5].

    The test for paragraph (b)(2) is not whether an attorney remembers the case, the

client, or the specific facts of the case. Rather, the requirement of (b)(2) is met if the
Final Op. 2012-07
Page 3 of 3

lawyer had actually acquired material information while at the former law firm. Due
diligence is required.

    In the instant inquiry, the inquiring attorney supervised several attorneys in

addition to handling his/her own caseload. The inquiring attorney is concerned about
whether the conflicts of interest of those attorneys are per se imputed to him/her because
he/she supervised them. Comment [6] to Rule 1.9 is instructive. The Comment states:

            [6] Application of paragraph (b) depends on a situation's
          particular facts, aided by inferences, deductions or working
          presumptions that reasonably may be made about the way in
          which lawyers work together. A lawyer may have general
          access to files of all clients of a law firm and may regularly
          participate in discussions of their affairs; it should be
          inferred that such a lawyer in fact is privy to all information
          about all the firm's clients. In contrast, another lawyer may
          have access to the files of only a limited number of clients
          and participate in discussions of the affairs of no other
          clients; in the absence of information to the contrary, it
          should be inferred that such a lawyer in fact is privy to
          information about the clients actually serviced but not those
          of other clients. In such an inquiry, the burden of proof
          should rest upon the firm whose disqualification is sought.


    The Panel is of the opinion that there is a reasonable inference that the inquiring

attorney was privy to information about clients who were represented by lawyers whom
the inquiring attorney supervised. Unless the presumption of such knowledge is rebutted
and the inquiring attorney can demonstrate that he/she had acquired no protected material
information about a supervised attorney's case, the inquiring attorney would have a
conflict of interest if the other elements of Rule 1.9(b) are also met; and the inquiring
attorney should decline the prospective client's representation.

    Accordingly, the Panel concludes that the inquiring attorney is prohibited from

representing a person in the same or a substantially related matter in which another Rhode
Island Legal Service's lawyer, while under the supervision of the inquiring attorney,
represented a client whose interests are materially adverse to that person, and about whom
the inquiring attorney actually had acquired protected information that is material to the
matter.