Does hiring a lawyer from an opposing firm disqualify either firm when that lawyer never worked on or learned anything about the disputed cases?

Plain-English summary

Law firm A hired an attorney who had worked in the administrative and governmental relations area at law firm B. Firm B was defending several civil suits brought by members of firm A. The migrating attorney had not worked on those files, billed no time to firm B's clients on them or closely related cases, attended no meetings discussing them, knew none of firm B's strategy, and had seen or heard no confidential information about the cases during his tenure at firm B. The question was whether the hire disqualified either firm.

The committee explained that conflicts arising from a lawyer's former firm are governed by Rules 1.6 and 1.9, balancing three considerations: assuring the former firm's client that loyalty is not compromised, not foreclosing others from a reasonable choice of counsel, and not unreasonably hampering lawyers from forming new associations. It concluded that Rule 1.9(b) disqualifies the migrating lawyer only when that lawyer has actual knowledge of confidential information protected by Rules 1.6 and 1.9(b). Because this lawyer acquired no knowledge or information relating to the client, neither he individually nor his new firm is disqualified from representing a client in the same matter, even though the two clients' interests conflict.

Currency note

This opinion was issued in 1995, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Does hiring a lawyer from the opposing firm automatically disqualify the new firm?

A: The committee concluded no, where the migrating lawyer has no actual knowledge of confidential information about the matter; Rule 1.9(b) turns on actual knowledge, not mere prior employment.

Q: What is the test under Rule 1.9(b)?

A: The committee said the rule disqualifies the lawyer only when the lawyer has actual knowledge of confidential information protected by Rules 1.6 and 1.9(b).

Q: Does it matter that the two firms' clients have conflicting interests?

A: The committee concluded it does not, where the lawyer acquired no information relating to the former firm's client.

Background and rules framework

The opinion applied Rule 1.9 (duties to former clients, including the Rule 1.9(b) standard for lawyers who move between firms) and Rule 1.6 (confidentiality), corresponding to the like-numbered Model Rules, framing the analysis around the three competing considerations the rules balance.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.9(b) / Model Rule 1.9: duties to former clients; lawyers moving between firms.
• South Carolina RPC 1.6 / Model Rule 1.6: confidentiality of information.

See also

• SC Bar Ethics Op. 96-15: Legal Services Referral Conflicts
• SC Bar Ethics Op. 96-02: Spouse Managing the Client

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-95-28/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 95-28

Law firm A has hired an attorney who was formerly employed at law firm B where he worked in the administrative and governmental relations area. Law firm B is defending several civil lawsuits that have been brought by various members of law firm A. The attorney did not work on any of these files, has not billed any time to any of the clients of law firm B on these files or any closely related cases, has not been a part of any meeting where these cases were ever discussed, and is not aware of any strategy law firm B or their clients may employ in these cases, and has not seen or heard any confidential information about any of these cases or any closely related cases during his tenure at law firm B.

Question:
Does the hiring of this attorney by law firm A disqualify either law firm A or law firm B from continuing their respective representation in the civil litigation?

Summary:
Rule 1.9(b) operates to disqualify the lawyer only when the lawyer involved has actual knowledge of confidential information protected by Rule 1.6 and Rule 1.9(b). If the lawyer acquired no knowledge or information relating to the client, and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same matter even though the interests of the two clients conflict.

Opinion:
Conflicts of interest arising from representation of a client by a lawyer's former firm are governed by Rules 1.6 and 1.9. The rules identify three competing considerations which must be taken into account:

1. The client represented by the former firm must be reasonably assured that the principle of loyalty to the client is not compromised; 2. The rules should not be so broadly cast as to preclude other persons from having a reasonable choice of legal counsel; 3. The rules should not unreasonably hamper lawyers from forming new associations after having left the previous association.

Rule 1.9(b) operates to disqualify the lawyer only when the lawyer involved has actual knowledge of confidential information protected by Rule 1.6 and Rule 1.9(b). If the lawyer acquired no knowledge or information relating to the client, and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same matter even though the interests of the two clients conflict.