When does a Wisconsin lawyer seeking a job with an opposing firm or party have a conflict of interest in the case they are handling?

Plain-English summary

Opinion EF-19-01 (June 26, 2019) addresses when a lawyer's own job search creates a conflict of interest in a matter the lawyer is handling. The committee concludes that a lawyer's interest in future employment is a "personal interest" that can materially limit representation under SCR 20:1.7(a)(2), because a lawyer seeking a job from an opposing firm or party has an incentive to please that adversary. Drawing on ABA Comment [10], the Restatement section 125, ABA Formal Opinion 96-400, and D.C. Bar Opinion 367, it holds that the conflict turns on two things: the lawyer's involvement in the matter and the concreteness of the job pursuit.

The lawyer's involvement must be active and material, though not necessarily primary; an associate working under a partner can have the conflict, while a lawyer who merely covered a single hearing and did no more does not. On timing, the committee offers guidelines: a generalized job search (the same resume sent to many employers, including an opposing firm) does not create a conflict; but the conflict arises when a lawyer with an active, material role agrees to an interview or other substantive employment discussion with an opposing firm, or sends a targeted, specific expression of interest to one. A criminal defense lawyer who sends a targeted application to an opposing prosecutor's office, for example, has a conflict requiring disclosure to and consent from the defense clients.

Once a conflict arises, the committee identifies three ways to address it: reassignment within the firm or withdrawal under SCR 20:1.16(b)(1) where it would not materially harm the client; disclosure and the client's signed informed consent under SCR 20:1.7(b); or stopping the employment discussions (while still considering whether the prospect of future employment requires disclosure). Because the conflict is personal to the job-seeking lawyer, it is generally not imputed to other lawyers in the firm under SCR 20:1.10(a)(1), so reassignment is usually available; the committee notes a lawyer's fear of termination or retaliation does not excuse addressing the conflict.

In practice

Under this opinion, conduct matching its fact pattern, a Wisconsin lawyer actively handling a matter who pursues a job with an opposing firm or party, is governed by SCR 20:1.7(a)(2). The committee concludes a generalized job search does not create a conflict, but agreeing to a substantive employment discussion (such as an interview) with an opposing firm, or sending it a targeted and specific expression of interest, does. The committee concludes the lawyer must then disclose to the client and obtain signed informed consent, seek reassignment within the firm, or withdraw; because the conflict is personal, it is not imputed to the firm, so reassignment is normally an option.

Common questions

Q: Does looking for a new job create a conflict?

A: Not in general. The committee concludes a generalized job search, such as the same resume sent to many employers, does not create a conflict.

Q: When does the conflict actually arise?

A: On concrete, targeted contact with an opposing firm. The committee concludes the conflict arises when a lawyer active in a matter agrees to a substantive employment discussion with an opposing firm or party, or sends it a targeted, specific expression of interest.

Q: How can the lawyer fix the conflict?

A: Three ways. The committee concludes the lawyer may seek reassignment or withdraw without harming the client, obtain the client's signed informed consent under SCR 20:1.7(b), or stop the employment discussions.

Q: Is the conflict imputed to the rest of the firm?

A: No. The committee concludes a job-search conflict is a personal-interest conflict not imputed to other firm lawyers under SCR 20:1.10(a)(1), so reassignment is usually available.

Q: Does an associate have this conflict, or only the lead lawyer?

A: Either, if involved. The committee concludes the role must be active and material but need not be primary, so an associate working on the matter can have the conflict.

Background and rules framework

The opinion interprets SCR 20:1.7 / Model Rule 1.7, specifically the personal-interest branch of 20:1.7(a)(2), together with SCR 20:1.10 / Model Rule 1.10 (the personal-interest exception to imputation in 20:1.10(a)(1)), SCR 20:1.16 / Model Rule 1.16 (withdrawal), and SCR 20:1.11 / Model Rule 1.11 (government-lawyer job negotiations under 20:1.11(d)(2)(ii), noted but largely outside scope). It relies on ABA Comment [10] to Rule 1.7, ABA Formal Opinion 96-400, D.C. Bar Opinion 367, and Restatement section 125.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:1.7, 20:1.7(a)(2) / Model Rule 1.7 (personal-interest conflicts)
• Wis. SCR 20:1.10(a)(1) / Model Rule 1.10 (personal-interest exception to imputation)
• Wis. SCR 20:1.16(b)(1) / Model Rule 1.16 (withdrawal without material adverse effect)
• Wis. SCR 20:1.11 / Model Rule 1.11 (government-lawyer job negotiations)

Other opinions cited:

• ABA Formal Opinion 96-400: when a job-search conflict arises (concreteness, communication, mutuality)
• D.C. Bar Ethics Opinion 367: personal-interest conflict from targeted employment contact
• Restatement (Third) of the Law Governing Lawyers § 125 cmt. d: seeking employment with an adversary

See also

• WI Ethics Op. EF-22-01: Migration in Criminal Practice
• WI Ethics Op. EF-25-02: Lawyer Mobility, Duties of the Departing Lawyer and the Firm
• ABA Formal Op. 489: Notice When Lawyers Change Firms

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/EF-19-01%20%20Job%20Negotiations.pdf