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Lawyer Mobility in the Context of Y Y Corporate Law Departments

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Lawyer Mobility in the Context of Y Y Corporate Law Departments Lawyyyer Mobility in the Context of Corporate Law Departments Presented by: William H. Roberts, Blank Rome LLP Jeremy A. Rist, Blank Rome LLP Kevin M. Passerini, Blank Rome LLP @BlankRomeLLP #EmergingIssues7 I. Do corporations need to anticipate ethical issues arising from lawyer mobilitbility? ? II. Could an entire corporate law depqpartment be disqualified? @BlankRomeLLP #EmergingIssues7 I. Lawyer Mobility: The Law Firm Context Do ethical rules pertaining to lawyers moving from one law firm to another law firm also apply to corporate law departments? @BlankRomeLLP #EmergingIssues7 Rule Basics—NY RPC 1.9: Duties to Former Clients • “(a) A lawyer who has formerly represented a client in a matter shall not thereafter 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 gives informed consent, confirmed in writing.” • “(b) Unless the former client gives informed consent, confirmed in writing, a lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client: (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 or paragraph (c) of this Rule that is material to the matter.” @BlankRomeLLP #EmergingIssues7 Rule Basics—NY RPC 1.9: Duties to Former Clients (continued) • “(c) A l aw yer who h as f orm erl y r epr esent ed a cli ent in a m att er or wh ose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use confidential information of the former client protected by Rule 1.6 to the disadvantage of the formerformer client except as these Rules would permit or require with respect to a current client or when the information has become generally known; or (2) reveal confidential information of the former client protectedprotected by Rule 1. 6 except as these Rules would permit or require with respect to a current client.” @BlankRomeLLP #EmergingIssues7 Rule Basics—NY RPC 1.10: Imputation of Conflicts of Interest • “(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them ppgracticing alone would be p rohibited from doing gy so by Rule 1.7, 1.8 or 1.9, except as otherwise provided therein.” • “(c) When a lawyer becomes associated with a firm, the firm may not knowingly represent a client in a matter that is the same as or substantially related to a matter in which the newly associated lawyer, or a firm with which that lawyer was associated, formerly represented a client whose interests are materially adverse to the prospective or current client unless the newly associated lawyer did not acquire any information protected by Rule 1.6 or Rule 1.9(c) that is material to the current matter.” • “(d) A disqualification prescribed by this Rule may be waived by the affected client or former client under the conditions stated in Rule 1.7 [(i.e., informed consent, confirmed in writing)]. ” @BlankRomeLLP #EmergingIssues7 But how do these conflicts rules apply in the context of corporate law departments? @BlankRomeLLP #EmergingIssues7 Corporate Law Departments and The Rules • New York’s rules expressly include corporate law departments : – NY RPC 1.0(()h) defines “firm" or "law firm“ as “includ[ing], but…not limited to, a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a qualified legal assistance organization, a government law office, or the legal department of a corporation or other organization.” • And New York is not alone: – See, e.g., PA RPC 1.0(c) (defining a “firm" or "law firm" as “a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization.”) @BlankRomeLLP #EmergingIssues7 Lawyer Mobility: How the Conflicts Rules Apply in the Traditional Law Firm Context • Case #1: Lawyer Moving from Law Firm to Law Firm – CflitConflicts analilysis • Restrict information to the conflict checking staff and the General Counsel’s office • Conflicts checks on the potential new clients • Collect information from the lateral and run searches to determine whether the lateral has any material information about the other side of matter the law firm is handling – Written consent required in NY • But notice and screening permitted in many other jurisdictions in the absence of consent – Get read to comply with Rule 1.10 @BlankRomeLLP #EmergingIssues7 Lawyer Mobility: How the Conflicts Rules Apply in the Traditional Law Firm Context • Case #2: Moving from Public Service to a Law Firm – NY RPC 1.11: Special rule regarding former government lawyers that permits screening: “(a) Except as law may otherwise expressly provide, a lawyer who has formerly served as a public officer or employee of the government: (1) shall comply with Rule 1.9(c); and (2) shall not represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.” @BlankRomeLLP #EmergingIssues7 Lawyer Mobility: Applying the Conflicts Rules in the Traditional Law Firm Context • Case #2 (continued): “(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless: (1) the firm acts promptly and reasonably to: (i) notify, as appropriate, lawyers and non-lawyer personnel within the firm that the personally disqualified lawyer is prohibited from participating in the representation of the current client; (ii) implement effective screening procedures to prevent the flow of information about the matter... (iii) …the disqualified lawyer is apportioned no part of the fee…; and (iv) given written notice to the appropriate government agency…; and (2) there are no other circumstances in the particular representation that create an appearance of impropriety.” @BlankRomeLLP #EmergingIssues7 Lawyer Mobility: How the Conflicts Rules Apply in the Traditional Law Firm Context • Case #2 (continued): “(c) … As used in this Rule, the term ‘confidential government information’ means information that has been obtained under governmental authority and that, at the time this Rule is applied, the g overnment is p rohibited by law from disclosing to the public or has a legal privilege not to disclose, and that is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is screened from any participation in the matter in accordance with the provisions of paragraph (b).” @BlankRomeLLP #EmergingIssues7 What Lawyer Mobility Ethics Compliance Presupposes • Key rules: – 1.9 (duties to former clients) – 1.10 (imputation of conflicts of interest) • Conflicts databases listing all existing and former clients and adverse parties in all matters • Staff trained to analyze the results of conflicts searches • Lawyers assigned to apply the applicable ethical rules to the facts of each case and to resolve conflicts through consents or, in the case of former government lawyers, screens and notices • IttiImputation priilinciples @BlankRomeLLP #EmergingIssues7 Parallel Scenarios for the In-House Lawyer or Corporate Law Department • Lawyyger moving from one cor porate law de partment to another corporate law department: Rule 1.10, Rule 1.9 • Lawyer moving from private law practice to a corporate law department: Rule 1.10, Rule 1.9 • Lawyer moving from a corporate law department to a private law firm: Rule 1.10, Rule 1.9 • Lawyer moving from public service to a corporate law department: RRlule 1111.11 • Lawyer moving from a corporate law department to public service: Rul e 1110.10, 191.9 @BlankRomeLLP #EmergingIssues7 How Can Corporate Law Departments Vet Lateral Lawyers under the Conflicts Rules? • Parallels with law firm practice • BIG DIFFERENCE – With corporate law departments, there is only one new client – Caveats: • What about the members of the corporate family? • What about when there is a corporate restructuring, merger, acquisition, or other transaction? • Other issues remain @BlankRomeLLP #EmergingIssues7 What Compliance by a Corporate Law Department Presupposes • As New York’s Rules define “law firm” and “firm,” Rule 1.10 applies to corporate law departments (see also NY RPC 1.10 , Comment 1) • NY RPC 1.10(e) also adds a “written record” requirement: “A law firm shall make a written record of its engagements, at or near the time of each new engggagement, and shall imppylement and maintain a system by which proposed engagements are checked against current and previous engagements when…(3) the firm hires or associates with another lawyer; or (4) an additional party is named or appears in a pending matter.” • Although mandatory in New York, a “written record” may be required under other states’ Rules, too (see, ege.g., PA RPC 1. 7 & Comment 3 (“reasonable procedures”)) @BlankRomeLLP #EmergingIssues7 But what if there is no actual conflict? • Because they fall within the
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