Can an associate who did no work and has no knowledge of a firm client interview with the opposing firm, and will that firm be disqualified if it hires him?

Plain-English summary

An associate at firm A had preliminary employment discussions with firm B. One of firm B's clients (Y) was in litigation, and likely to be in more, against X, a client of firm A. Neither the associate nor the partner he worked with at firm A had done any work for X or had any actual knowledge of matters involving X, and if the associate moved to firm B he would do no work on the X-Y litigation. The Committee was asked whether the associate could discuss employment with firm B, and whether firm B would be disqualified from representing Y if it hired him.

The Committee explained that while at firm A, the associate, like every member of that firm, was disqualified under DR 5-105(D) from accepting employment against the firm's client X, and that this imputed disqualification would not end when he left firm A; he would remain personally disqualified from representing Y against X. The harder question was whether the associate's disqualification would extend to firm B's other members if he joined. The Committee stressed that the associate was disqualified only by imputed knowledge of matters affecting X, not by any direct attorney-client relationship with X.

Finding no Texas case on point but a uniform line of decisions elsewhere, the Committee concluded that the associate's vicarious disqualification should not extend to firm B's other members: knowledge imputed to a lawyer during a former partnership is not re-imputed to the lawyer's new partners. It cited Laskey Bros. of W. Va. v. Warner Bros. Pictures, American Can Co. v. Citrus Feed Co., Smith v. Whatcott, and Panduit Corp. v. Allstates Plastic Mfg. Co. The Committee therefore concluded that it is not unethical for the associate to discuss employment with firm B, and that although it would be unethical for the associate himself to represent Y, the other members of firm B may continue to represent Y in pending or future litigation against X.

Currency note

This opinion was issued in 1987, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The Disciplinary Rules have since been amended, including the comprehensive 2021 revisions adopted by Texas Supreme Court order, and Texas never adopted the ABA's Ethics 2000 framework. Imputation of conflicts is now addressed in Texas Rules 1.09 and related provisions. Subsequent rule changes 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: Can an associate interview with the firm on the other side of a case his firm is handling?

A: The Committee concluded yes, where the associate did no work and has no actual knowledge of the firm's client. It is not unethical for him to discuss employment with the opposing firm.

Q: Is the associate himself free to work on that case at the new firm?

A: Per the opinion, no. The associate remains personally disqualified by imputation from representing the opposing client against his former firm's client, even after he leaves.

Q: Does hiring the associate disqualify the new firm?

A: The Committee concluded no. Knowledge imputed to the associate at his former firm is not re-imputed to his new partners, so the other members of the hiring firm may continue the representation.

Background and rules framework

The opinion interprets DR 5-105(D) of the former Texas Code of Professional Responsibility (imputed disqualification within a firm; analogous to ABA Model Rule 1.10), with the departing lawyer's continuing personal disqualification reflecting concerns now in ABA Model Rule 1.9. The analysis distinguishes disqualification based on a direct attorney-client relationship from disqualification based solely on imputed knowledge, and concludes that doubly-imputed knowledge does not reach the new firm.

Citations and references

Rules of Professional Conduct:

• MR 1.10 (imputation of conflicts of interest)
• MR 1.9 (duties to former clients)
• DR 5-105(D), Texas Code of Professional Responsibility (imputed disqualification within a firm)

Cases:

• Laskey Bros. of W. Va., Inc. v. Warner Bros. Pictures, Inc., 224 F.2d 824 (2d Cir. 1955)
• American Can Co. v. Citrus Feed Co., 436 F.2d 1125 (5th Cir. 1971)
• Smith v. Whatcott, 774 F.2d 1032 (10th Cir. 1985)
• Panduit Corp. v. Allstates Plastic Mfg. Co., 744 F.2d 1564 (Fed. Cir. 1984)

See also

• TX Ethics Op. 472: Disqualification When Hiring a Nonlawyer From the Opposing Firm
• TX Ethics Op. 608: Legal Services Organization Conflicts in a Custody Matter
• TX Ethics Op. 494: Disqualification After a Brief Earlier Consultation With the Opposing Spouse

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-453/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_453.pdf

Original opinion text

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

QUESTION PRESENTED

May an associate attorney of law firm A engage in employment discussions with law firm B, while law firm A represents X, which is in litigation with Y, represented by law firm B, where the associate and the partner for whom he worked in law firm A have done no work for X and have no actual knowledge of any matter pertaining to X?
If the associate is employed by law firm B, will law firm B be disqualified from continuing to represent Y in the litigation between X and Y?

STATEMENT OF FACTS

An associate attorney employed by law firm A has had preliminary discussions with law firm B regarding potential employment. One of law firm's B's clients (Y) is currently involved in litigation, and is likely to become involved in additional litigation, against X, a client of law firm A. Neither the associate nor the partner in law firm A with whom he works has done any work on any matter for X and neither the associate nor the partner for whom he works has any actual knowledge of matters involving X. If the associate resigns from law firm A and is employed by law firm B, he will perform no work in connection with the litigation between X and Y.

DISCUSSION

While the associate was employed by law firm A, he as well as every other member of law firm A was disqualified from accepting employment against that firm's client, X. DR 5-105(D). The associate's disqualification would not end upon his leaving law firm A, so he would be disqualified from representing Y, the client of law firm B, in a suit against X.

The more difficult question is whether the disqualification of the associate extends to the members of law firm B if he joins that firm. Critical to the decision of the question is the fact that the associate is vicariously disqualified by his imputed knowledge of matters affecting X and not by a direct attorney-client relationship between the associate and X. Should each member of law firm B be disqualified by imputation of the associate's imputed knowledge?

No Texas case in point has been found, but a uniformity of court decisions in other jurisdictions persuade us that the vicarious disqualification of the associate should not extend to the other members of law firm B. New partners of a lawyer who is vicariously disqualified only as the result of knowledge imputed to him during a former partnership, are not disqualified from suing the client of the disqualified partner's former law firm. The knowledge of the business of the client obtained by his former partners and imputed to him is not imputed to his new partners. Laskey Bros. of W. Va., Inc. v. Warner Bros. Pictures, Inc., 224 F.2d 824 (2nd Cir. 1955); American Can Company v. Citrus Feed Co., 436 F.2d 1125 (5th Cir. 1971); Smith v. Whatcott, 774 F.2d 1032 (10th Cir. 1985), also supports that conclusion. In the latter case, an attorney who was a member of one firm was held to be not disqualified from serving as counsel on appeal after the original appellate counsel was disqualified due to an imputed conflict resulting from the attorney-client relationship between another member of his firm and a party to the appeal. A similar result was reached in Panduit Corp. v. Allstates Plastic Manufacturing Co., Inc., 744 F.2d 1564 (Fed. Cir. 1984).

CONCLUSION

If the associate of law firm A has done no work for X and has no knowledge of matters affecting X, it is not unethical for the associate to discuss employment with law firm B which represents Y in litigation with X. Further, under the facts presented, although it would be unethical for the associate to represent Y, it would not be unethical for other members of law firm B to continue to represent Y in pending or future litigation against X.

Tex. Comm. On Professional Ethics, Op. 453 (1987)