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Lawyer Mobility and Imputed Law Firm Disqualification: Implementing Timely and Effective Ethical Screens An Illustration of What Not To Do By Marcy Tench Stovall Reprinted with permission of the Connecticut Bar Association. 18 Connecticut Lawyer November 2010 Visit www.ctbar.org Imagine this situation: A lawyer has worked for a firm (Law Firm A) that focuses on the representation of lenders in prosecuting foreclosure actions. In the course of that employment, the lawyer has handled hundreds of foreclosure mediations across the state on behalf of numerous lenders. Perhaps wearying of representing banks, the lawyer leaves Law Firm A and joins Law Firm B. Not only is Law Firm B engaged primarily in foreclosure defense work, but in 70 percent of Law Firm B’s defense cases, Law Firm A appears on behalf of the very lenders the lawyer formerly represented as plaintiffs’ counsel. Prior to joining Law Firm B, the lawyer has several conversations with a member of the new firm about the foreclosure mediation defense work the lawyer will undertake in his new position. Somehow the topic of conflicts of interest never comes up. In his transition from Law Firm A to Law the most common and effective means by neys moving from one firm to another has Firm B, the lawyer neglects to do two tasks: which to avoid an imputed conflict triggered come an increase in the number of poten- (1) he does not check with Law Firm A or by the mobile lawyer’s move to a new firm: tial conflicts of interest between the mov- its clients about potential conflicts of inter- an ethical screen around the laterally mov- ing attorney’s former clients and clients of est before leaving Law Firm A, and (2) after ing attorney to prevent both: (1) the mov- the new firm. It is generally well understood joining Law Firm B, neither he nor his new ing lawyer’s participation in the relevant that when an attorney has formerly repre- employer take any steps to limit the lawyer’s client matter, and (2) the exchange or dis- sented one party in a matter, Rule 1.9 of the work to those matters not involving his for- closure—inadvertent or otherwise—of the Connecticut Rules of Professional Conduct mer firm. confidential client information obtained at (“Duties to Former Clients”) prohibits the her former firm. An ethical screen, properly attorney from undertaking representation of Inevitably, Law Firm A files a disqualifica- constructed, will serve to protect against the another party in that matter, or one that is tion motion in a case in which the lawyer, very harms that imputed disqualification is “substantially related,” where the new rep- while employed at Law Firm A, had filed meant to prevent.2 resentation will be adverse to the former a motion on behalf of the plaintiff-lender, client’s interests. to terminate the foreclosure mediation stay, A Brief History of Imputed and then, in his new position at Law Firm B, Conflicts of Interest and Ethical Less well understood is that if Rule 1.9 appeared at a scheduled mediation on behalf Screens would disqualify an attorney from repre- of the defendant debtor. Unsurprisingly, the When the American Bar Association adopt- senting a party in a matter, and the attor- court grants the plaintiff-lender’s motion to ed the Model Rules of Professional Conduct ney joins a new firm, under Connecticut’s disqualify the lawyer and Law Firm B on (the Model Rules) in 1982, and when the current version of Rule 1.10 (“Imputation the basis of an imputed disqualification. judges of the superior court followed suit of Conflicts of Interest”) it is presumed that and approved the adoption of the Connecti- every attorney at the new firm, and the firm The foregoing is not a law school exam hy- cut Rules of Professional Conduct in 1986, itself, must also be disqualified. Put another pothetical, but a summary of a recent su- lawyer mobility was not a primary concern way, like a contagion, the moving lawyer’s perior court decision granting a motion to for lawyers, judges, or clients. Times have conflict of interest infects every attorney at disqualify.1 The decision by Judge Julia L. changed—the lateral transfer of an attor- the new firm whether it is a solo practice or Aurigemma is useful in providing an almost ney from one firm to another, though once a large firm and whether the firm has one perfect illustration, in reverse, of what an at- relatively rare, is now commonplace, and office or dozens of branches around the torney should consider in making a lateral the rules and standards that govern attorney globe.3 move to another firm when the new posi- conduct are evolving to address that change tion may give rise to one or more imputed In an effort to address the restrictive impact in law practice. conflicts of interest. And in writing the de- on lawyer mobility, the ABA, in February cision, Judge Aurigemma also identified With an increase in the number of attor- 2009, amended Rule 1.10 of the Model Connecticut Lawyer November 2010 19 Rules “to permit the screening of lawyers from one firm to another. At the ABA’s firm for the following: assurance that the when they move from one firm to another next meeting, in August 2009, the House former clients’ confidences are protected so that, as long as all the procedural require- of Delegates voted to further amend Rule and not at risk of disclosure, even though ments of the Rule are fulfilled, the moving 1.10 to clarify that the screening provisions the clients’ former lawyer now works for lawyers’ new colleagues would not be sub- are available to prevent imputed disqualifi- the very firm appearing on the other side of ject to discipline for representing clients in cations only in the case of lawyers moving the case. To the extent the court is reassured matters that the moving lawyer would be from firm to firm. And over the last 20 years, that the former clients’ confidences are not prohibited from handling.”4 about half of the states have adopted some at risk, the balance will tip in favor of the version of screening in the rules governing competing interest: that is, the non-moving The change in Model Rule 1.10 to permit lawyer conduct. Partisans on both sides of party’s interest in continuing with its chosen screening came after a drawn out and con- the issue continue to debate the wisdom and counsel.8 Lawyers and law firms can readily tentious battle, with impassioned partisans effectiveness of ethical screens. address the legitimate worry about the pro- on both sides. In overhauling the Model tection of client confidences with an ethical Ethical Screens in Connecticut Rules in 2002, the ABA had rejected the screen that is both timely and meaningful. recommendation of the Ethics 2000 Com- The judges of the Connecticut Superior mission to include a provision permit- Court have not yet taken up the ABA’s pro- How to Create an Effective ting screening of attorneys making lateral posal to revise Rule 1.10 to add a screening Ethical Screen moves so as to avoid imputed disqualifica- provision. But even prior to the proposal to When an attorney moves from one firm to tion. When a similar proposal came up at codify screening as a remedy for imputed another, effective screening must begin dur- the August 2008 annual meeting, the ABA’s conflicts, Connecticut’s trial court judges ing the hiring process, not after the moving House of Delegates voted, by a margin of consistently have approved the use of ethi- attorney has started work at the new firm. only one vote, to table the proposal. When cal screens to prevent the imputed disquali- The new firm must undertake due diligence the House of Delegates finally adopted the fication of an entire firm when a lawyer (or to ascertain whether the new lawyer’s em- screening provision, in February 2009, it paralegal) brings with him or her an un- ployment at the firm will give rise to any did so only after a spirited, and frequently waived conflict of interest in moving from conflicts of interest with his or her former 5 heated, debate. one firm to another. Indeed, there does not clients. In any matter in which the firms appear to be a reported decision in which the have been representing directly adverse Those opposed to the amendment feared an court granted a motion to disqualify when parties, the migrating lawyer—in order to erosion of the trust between clients and at- the challenged law firm had in place—or fulfill his or her duty of loyalty to the clients torneys. They claimed not only that screens was expected to put in place—adequate left behind—must personally remove him- would not, and could not, be effective, but screening. And even in granting the motion self from any participation in the conflicting that proponents of the amendment were for disqualification in the case described matter after leaving the former firm. And in motivated primarily by profit and big firm at the beginning of this article, Judge Au- order for the new firm to meet its duty of priorities—including aggressive recruit- rigemma nonetheless implicitly approved loyalty to its clients, and “immunize” itself ment of lateral partners or acquisition of the use of properly and timely implemented from the new lawyer’s conflict, it must put entire practice groups—over the traditional ethical screens. She noted that there exists in place comprehensive screening proce- pledge of loyalty to client.

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