A lawyer switched firms and my opponent moved to disqualify the new firm, claiming a substantial relationship to the old firm's matter. If that lawyer had no actual knowledge of the client, is the firm disqualified under Rule 1.10?

Plain-English summary

This opinion, 94-71(A), issued January 11, 1995, clarifies the Panel's Opinion 94-71 (issued November 15, 1994) at an inquiring attorney's request. The inquiring attorney was being challenged on a motion to disqualify his or her law firm from representing a plaintiff in a civil matter. Opposing counsel alleged that the litigation was substantially related to a matter handled by the firm at which the inquiring attorney was formerly employed. Both the opposing party and its counsel stated they had no evidence that the inquiring attorney had any personal knowledge relating to that client or the matter, and the inquiring attorney stated he or she had no personal contact with the client.

The Panel set out Rule 1.10(c), under which, when a lawyer has terminated an association with a firm, that firm is not prohibited from representing a person with interests materially adverse to a client represented by the formerly associated lawyer unless the matter is the same or substantially related and any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(b) that is material to the matter. The Panel quoted the Comment that paragraphs (b) and (c) disqualify a firm only when the lawyer involved has actual knowledge of protected information, and quoted Rule 1.9 and the Hazard and Hodes treatise, which frame the key test as the incoming lawyer's actual knowledge about a former client.

Applying these authorities, the Panel opined that whether or not the matters are substantially related, the inquiring attorney is not imputedly disqualified under Rules 1.9 and 1.10 from representing the plaintiff, because the attorney does not possess any actual knowledge about the former client, and, as all parties acknowledged, no lawyers in the new firm have material information protected by Rules 1.6 and 1.9(b). The Panel also cited its Opinion 94-74.

Currency note

This opinion was issued in 1995 (Opinion 94-71(A), issued January 11, 1995, clarifying Opinion 94-71 of November 15, 1994), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.10, 1.9, and 1.6 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which amended these rules. 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 mentioned here.

Common questions

Q: If a lateral lawyer never knew anything about the old firm's client, is the new firm disqualified?

A: The Panel concluded no. Because the incoming lawyer has no actual knowledge of the former client and no lawyer in the new firm holds material protected information, neither the lawyer nor the firm is imputedly disqualified under Rules 1.9 and 1.10.

Q: Does it matter whether the matters are substantially related?

A: The Panel opined that whether or not the matters are substantially related, disqualification does not follow, because the controlling test under Rule 1.10(c) is the incoming lawyer's actual knowledge of protected information.

Q: What is the key test for imputed disqualification when a lawyer changes firms?

A: The Panel, citing the Hazard and Hodes treatise, identified the incoming lawyer's actual knowledge about the former client as the key test; without such knowledge, there is nothing to impute.

Background and rules framework

The opinion interprets Rhode Island Rules of Professional Conduct 1.10 (imputed disqualification), 1.9 (conflict of interest: former client), and 1.6 (confidentiality), the analogs of Model Rules 1.10, 1.9, and 1.6. Rule 1.10(c) disqualifies a firm only where a remaining lawyer holds Rule 1.6/1.9(b)-protected material information; the Panel applied the actual-knowledge test to a lateral lawyer with no client-specific knowledge.

Citations and references

Rules of Professional Conduct:

• MR 1.10 / RI RPC 1.10(c) (imputed disqualification; actual-knowledge test)
• MR 1.9 / RI RPC 1.9 (conflict of interest: former client)
• MR 1.6 / RI RPC 1.6 (confidentiality of information)

Other opinions cited:

• RI EAP Opinion 94-71 (issued November 15, 1994), clarified by this opinion
• RI EAP Opinion 94-74

Other references:

• Geoffrey C. Hazard and W. William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct, § 1.10:208 (1994 Supp.)

See also

• RI EAP Opinion 94-53: no continuing duty to a former client's minor child under Rule 1.9
• RI EAP Opinion 94-28: firm's former estate client bars representing the insurer under Rules 1.9/1.10

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%2094-71.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS ADVISORY PANEL
OPINION # 94-71(A) REQUEST # 542
Issued January 11, 1995

An inquiring attorney has requested that the Panel clarify its Opinion 94-71 (Issued November 15, 1994). The Panel has agreed to do so. The inquiring attorney is being challenged on a motion to disqualify his/her law firm from representing a plaintiff in a civil matter. The opposing party's counsel alleges that the litigation matter is substantially related to a matter handled by the law firm at which the inquiring attorney was formerly employed. Both the opposing party and counsel have stated that they have no evidence that the inquiring attorney has any personal knowledge relating to this client or the matter. The inquiring attorney states that he/she had no personal contact with this client.

Rule 1.10(c) of the Rules of Professional Conduct provides as follows:

When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of the client represented by the formerly associated lawyer unless:

(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and

(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(b) that is material to the matter.

The comments to this Rule provide:

Paragraph (b) and (c) operate to disqualify the firm only when the lawyer involved has actual knowledge of information protected by Rules 1.6 and 1.9(b). Thus, if a lawyer while with one firm acquired no knowledge of information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interest of the two clients conflict.

Rule 1.9 entitled "Conflict of Interest: Former Client" states: A lawyer who has formerly represented a client in a matter shall not thereafter:

(a) 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 consents after consultation; or

(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client or when the information has become generally known.

Professor Hazard who opines on the Rules of Professional Conduct states the following regarding imputed disqualification:

The position adopted through the combined effects of Rules 1.9 and 1.10 recognizes a reasonable balance of the interest involved when a lawyer switches firms. The key test is the incoming lawyer's actual knowledge about a former client. If the incoming lawyer has such knowledge, then that lawyer personally is barred from adverse representations in related matter, under Rule 1.9. Rule 1.10(a) then disqualifies all members of the new (current) firm from handling matters to which the knowledge pertains and matters substantially related thereto. If the moving lawyer has no client-specific information, however, then even the moving lawyer is not barred, and there is nothing to impute to others. The Law of Lawyering, Handbook on the Model Rules of Professional Conduct, Geoffrey C. Hazard and W. William Hodes, Section 1.10:208 (1994 Supp).

Whether or not the matters are substantially related, the inquiring attorney is not imputedly disqualified under Rules 1.9 and 1.10 from representing the plaintiff because the inquiring attorney does not possess any actual knowledge about the former client. As acknowledged by all parties involved, no lawyers in the inquiring attorney's new law firm have material information protected by Rules 1.6 and 1.9(b). See, also Rhode Island Ethics Advisory Panel Opinion 94-74.