Do conflicts from a law-clerk or intern job follow a lawyer after admission, and can screening cure them?

Plain-English summary

The inquiry came from a former law clerk who asked two related questions about potential conflicts arising from work as a clerk or intern for a law firm, and whether and how a screening mechanism could address them. The committee began with RPC 5.3, noting that the rules apply to nonlawyers as well as to the lawyers in a firm. While a person is a clerk or intern, the lawyers of the office are responsible for the person's compliance, but once the person is a lawyer, the lawyer is also responsible for complying with the RPCs, including potential conflicts for work done before passing the bar. The committee added that a Rule 9 Legal Intern would have been fully subject to the RPCs.

The committee concluded the described fact pattern is governed by RPC 1.9. The lawyer should follow the procedures set forth in that rule before working on a matter adverse to a client of the firm where the lawyer worked and had access to information about the client, and the committee noted that the materiality of the information cannot be safely determined unilaterally. As to screening, the committee said RPC 1.10 sets the criteria for a "screening mechanism," that application of the rule is fact-specific, and that giving specific advice on how to set one up would constitute legal advice, which the committee does not provide.

Currency note

This opinion was issued in 1999, before the Washington State Bar Association's adoption of the 2006 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 Treat this page as historical context, not current guidance.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. Washington's conflict-imputation and screening provisions (RPC 1.10) and the supervision rule (RPC 5.3) were revised in the 2006 revisions, so verify the current rules before relying on them.

Common questions

Q: Do conflicts from clerking or interning follow you once you are admitted?

A: The committee concluded they can. Once a person is a lawyer, the lawyer is responsible for compliance with the RPCs, including potential conflicts for work done before passing the bar.

Q: Which rule governs the conflict analysis?

A: The committee said the fact pattern is governed by RPC 1.9, and that the lawyer should follow that rule's procedures before working on a matter adverse to a former firm's client.

Q: Can a screen fix the conflict?

A: The committee said RPC 1.10 sets the criteria for a screening mechanism, but that its application is fact-specific and giving specific setup advice would be legal advice it does not provide.

Background and rules framework

The opinion applied Washington RPC 5.3 (responsibilities regarding nonlawyer assistants), RPC 1.9 (duties to former clients), and RPC 1.10 (imputation of conflicts and screening), corresponding to ABA Model Rules 5.3, 1.9, and 1.10. The committee grounded the carry-over of clerk or intern conflicts in RPC 5.3 and the lawyer's post-admission responsibility, located the conflict analysis in RPC 1.9, and pointed to RPC 1.10 for the screening criteria.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.9 (duties to former clients); Washington RPC 1.9
• ABA Model Rule 1.10 (imputation of conflicts of interest); Washington RPC 1.10
• ABA Model Rule 5.3 (responsibilities regarding nonlawyer assistants); Washington RPC 5.3

See also

• WA Ethics Op. 1854: Hiring a Prosecutor's Ex-Aide
• WSBA Ethics Op. 1064: Former Agency Lawyer Screening
• WSBA Ethics Op. 1050: Former Government Lawyer Conflict

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1050

Original opinion text

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

Advisory Opinion: 1857
Year Issued: 1999
RPC(s): RPC 1.9; 1.10; 5.3
Subject: Conflict of interest; lawyer worked for opposing firm as law clerk or intern before admitted to practice

I have been instructed by the Rules of Professional Conduct Committee to respond to your ethics inquiry #1857 concerning your position as a former law clerk and future employment.

The Committee has reviewed your inquiry and determined the following:

We understand that you asked two related questions pertaining to potential conflicts that may arise as a result of your work as a clerk or intern for a law firm, and whether and how this could be addressed by a screening mechanism.

First, under RPC 5.3 the rules apply to nonlawyers as well as to the lawyers in a law firm. Although while you are a clerk or an intern the lawyers of the office are responsible for your compliance; once you are a lawyer you are also responsible to comply with the RPCs. This would include potential conflicts for work you had done before you passed the bar. In addition, if you were a Rule 9 Legal Intern, you would have been fully subject to the RPCs.

The fact pattern you have described is governed by RPC 1.9. You should follow the procedures set forth in the rule before working on a matter adverse to a client of the firm where you worked and where you had access to information about the client. A determination of materiality of the information you may have cannot be safely made unilaterally.

RPC 1.10 sets forth the criteria for setting up what has been termed a "screening mechanism." The application of this rule is fact specific. To give specific advice on how to set such a mechanism up in your case would constitute giving legal advice. The committee does not give legal advice.