Rule 1.10. Imputed Disqualification: General Rule

Alabama Rules of Professional Conduct

Client-Lawyer Relationship

Rule 1.10.

Imputed Disqualification: General Rule.

(a)

While lawyers are associated in a firm, none of them shall knowingly

represent a client when any of them, practicing alone, would be prohibited from doing so

by Rules 1.7, 1.8(a)-1.8(k), 1.9, or 2.2.

(b)

When a lawyer becomes associated with a firm, the firm may not knowingly

represent a person in the same or a substantially related matter in which that lawyer, or

a firm with which the lawyer was associated, had previously represented a client whose

interests are materially adverse to that person and about whom the lawyer had acquired

information protected by Rules 1.6 and 1.9(b) that is material to the matter.

(c)

When a lawyer has terminated an association with a firm, the firm is not

prohibited from thereafter representing a person with interests materially adverse to those

of a client represented by the formerly associated lawyer, unless:

(1)

The matter is the same or substantially related to that in which

the formerly associated lawyer represented the client; and

(2)

Any lawyer remaining in the firm has information protected by

Rules

1.6 and 1.9(b) that is material to the matter.

(d)

A disqualification prescribed by this rule may be waived by the affected

client under the conditions stated in Rule 1.7.

[Amended eff. 6-23-2008.]

Comment (As Amended Effective June 23, 2008)

Definition of “Firm”

For purposes of the Rules of Professional Conduct, the term “firm” denotes

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. Whether

two or more lawyers constitute a firm within this definition can depend on the specific

e Rules of Professional Conduct, the term “firm” denotes

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. Whether

two or more lawyers constitute a firm within this definition can depend on the specific

facts. For example, two practitioners who share office space and occasionally consult

or assist each other ordinarily would not be regarded as constituting a firm. However,

if they present themselves to the public in a way suggesting that they are a firm or

conduct themselves as a firm, they should be regarded as a firm for purposes of the

Rules. The terms of any formal agreement between associated lawyers are relevant

in determining whether they are a firm, as is the fact that they have mutual access to

confidential information concerning the clients they serve. Furthermore, it is relevant

in doubtful cases to consider the underlying purpose of the rule that is involved. A

group of lawyers could be regarded as a firm for purposes of the rule that the same

lawyer should not represent opposing parties in litigation, while it might not be so

regarded for purposes of the rule that information acquired by one lawyer is attributed

to another.

With respect to the law department of an organization, there is ordinarily no

question that the members of the department constitute a firm within the meaning of

the Rules of Professional Conduct. However, there can be uncertainty as to the identity

of the client. For example, it may not be clear whether the law department of a

corporation represents a subsidiary or an affiliated corporation, as well as the

corporation by which the members of the department are directly employed. A similar

question can arise concerning an unincorporated association and its local affiliates.

Similar questions can also arise with respect to lawyers in legal aid

client. For example, it may not be clear whether the law department of a

corporation represents a subsidiary or an affiliated corporation, as well as the

corporation by which the members of the department are directly employed. A similar

question can arise concerning an unincorporated association and its local affiliates.

Similar questions can also arise with respect to lawyers in legal aid. Lawyers

employed in the same unit of a legal services organization constitute a firm, but not

necessarily those employed in separate units. As in the case of independent

practitioners, whether the lawyers should be treated as associated with each other can

depend on the particular rule that is involved, and on the specific facts of the situation.

Where a lawyer has joined a private firm after having represented the

government, the situation is governed by Rule 1.11(a) and (b); where a lawyer

represents the government after having served private clients, the situation is

governed by Rule 1.11(c)(1). The individual lawyer involved is bound by the Rules

generally, including Rules 1.6, 1.7, and 1.9.

Different provisions are thus made for movement of a lawyer from one private

firm to another and for movement of a lawyer between a private firm and the

government. The government is entitled to protection of its client's confidences, and

therefore, to the protections provided in Rules 1.6, 1.9, and 1.11. However, if the more

extensive disqualification in Rule 1.10 were applied to former government lawyers, the

potential effect on the government would be unduly burdensome. The government

deals with all private citizens and organizations, and thus has a much wider circle of

adverse legal interests than does any private law firm. In these circumstances, the

government's recruitment of lawyers would be seriously impaired if Rule 1.10 were

applied to the government. On balance, therefore, the government is better served in

the long run by the protections stated in Rule 1.11.

ent

deals with all private citizens and organizations, and thus has a much wider circle of

adverse legal interests than does any private law firm. In these circumstances, the

government's recruitment of lawyers would be seriously impaired if Rule 1.10 were

applied to the government. On balance, therefore, the government is better served in

the long run by the protections stated in Rule 1.11.

Principles of Imputed Disqualification

The rule of imputed disqualification stated in paragraph (a) gives effect to the

principle of loyalty to the client as it applies to lawyers who practice in a law firm.

Such situations can be considered from the premise that a firm of lawyers is

essentially one lawyer for purposes of the rules governing loyalty to the client, or

from the premise that each lawyer is vicariously bound by the obligation of loyalty

owed by each lawyer with whom the lawyer is associated. Paragraph (a)

operates only among the lawyers currently associated in a firm. When a lawyer

moves from one firm to another, the situation is governed by paragraphs (b) and

(c).

Lawyers Moving Between Firms

When lawyers have been associated in a firm but then end their association,

however, the problem is more complicated. The fiction that the law firm is the same as

a single lawyer is no longer wholly realistic. There are several competing

considerations. First, the client previously represented must be reasonably assured

that the principle of loyalty to the client is not compromised. Second, the rule of

disqualification should not be so broadly cast as to preclude other persons from having

reasonable choice of legal counsel. Third, the rule of disqualification should not

unreasonably hamper lawyers from forming new associations and taking on new

clients after having left a previous association

sonably assured

that the principle of loyalty to the client is not compromised. Second, the rule of

disqualification should not be so broadly cast as to preclude other persons from having

reasonable choice of legal counsel. Third, the rule of disqualification should not

unreasonably hamper lawyers from forming new associations and taking on new

clients after having left a previous association. In this connection, it should be

recognized that today many lawyers practice in firms, that many to some degree limit

their practice to one field or another, and that many move from one association to

another several times in their careers. If the concept of imputed disqualification were

defined with unqualified rigor, the result would be radical curtailment of the opportunity

of lawyers to move from one practice setting to another and of the opportunity of clients

to change counsel.

Reconciliation of these competing principles in the past has been attempted

under two rubrics. One approach has been to seek per se rules of disqualification. For

example, it has been held that a partner in a law firm is conclusively presumed to have

access to all confidences concerning all clients of the firm. Under this analysis, if a

lawyer has been a partner in one law firm and then becomes a partner in another law

firm, there is a presumption that all confidences known by a partner in the first firm are

known to all partners in the second firm. This presumption might properly be applied

in some circumstances, especially where the client has been extensively represented,

but may be unrealistic where the client was represented only for limited purposes.

Furthermore, such a rigid rule exaggerates the difference between a partner and an

associate in modern law firms.

ner in the first firm are

known to all partners in the second firm. This presumption might properly be applied

in some circumstances, especially where the client has been extensively represented,

but may be unrealistic where the client was represented only for limited purposes.

Furthermore, such a rigid rule exaggerates the difference between a partner and an

associate in modern law firms.

The other rubric formerly used for dealing with vicarious disqualification is the

appearance of impropriety proscribed in Canon 9 of the ABA former Code of

Professional Responsibility. This rubric has a twofold problem. First, the appearance

of impropriety can be taken to include any new client-lawyer relationship that might

make a former client feel anxious. If that meaning were adopted, disqualification would

become little more than a question of subjective judgment by the former client.

Second, since “impropriety” is undefined, the term “appearance of impropriety” is

question-begging. It therefore has to be recognized that the problem of imputed

disqualification cannot be properly resolved either by simple analogy to a lawyer

practicing alone or by the very general concept of appearance of impropriety.

A rule based on a functional analysis is more appropriate for determining the

question of vicarious disqualification. Two functions are involved: preserving

confidentiality and avoiding positions adverse to a client.

Confidentiality

Preserving confidentiality is a question of access to information. Access to

information, in turn, is essentially a question of fact in particular circumstances, aided

by inferences, deductions or working presumptions that reasonably may be made

about the way in which lawyers work together. A lawyer may have general access to

files of all clients of a law firm and may regularly participate in discussions of their

affairs; it should be inferred that such a lawyer in fact is privy to all information about

all the firm's clients

particular circumstances, aided

by inferences, deductions or working presumptions that reasonably may be made

about the way in which lawyers work together. A lawyer may have general access to

files of all clients of a law firm and may regularly participate in discussions of their

affairs; it should be inferred that such a lawyer in fact is privy to all information about

all the firm's clients. In contrast, another lawyer may have access to the files of only a

limited number of clients and participate in discussion of the affairs of no other clients;

in the absence of information to the contrary, it should be inferred that such a lawyer

in fact is privy to information about the clients actually served but not those of other

clients.

Application of paragraphs (b) and (c) depends on a situation's particular facts.

In any such inquiry, the burden of proof should rest upon the firm whose disqualification

is sought.

Paragraphs (b) and (c) operate to disqualify the firm only when the lawyer

involved has actual knowledge of information protected by Rules 1.6 and 1.9(b). Thus,

if a lawyer while with one firm acquired no knowledge of information relating to a

particular client of the firm, and that lawyer later joined another firm, neither the lawyer

individually nor the second firm is disqualified from representing another client in the

same or a related matter even though the interests of the two clients conflict.

Independent of the question of disqualification of a firm, a lawyer changing

professional association has a continuing duty to preserve confidentiality of

information about a client formerly represented. See Rules 1.6 and 1.9.

dividually nor the second firm is disqualified from representing another client in the

same or a related matter even though the interests of the two clients conflict.

Independent of the question of disqualification of a firm, a lawyer changing

professional association has a continuing duty to preserve confidentiality of

information about a client formerly represented. See Rules 1.6 and 1.9.

Adverse Positions

The second aspect of loyalty to client is the lawyer's obligation to decline

subsequent representations involving positions adverse to a former client arising in

substantially related matters. This obligation requires abstention from adverse

representation by the individual lawyer involved, but does not properly entail

abstention of other lawyers through imputed disqualification. Hence, this aspect of the

problem is governed by Rule 1.9(a). Thus, if a lawyer left one firm for another, the new

affiliation would not preclude the firms involved from continuing to represent clients

with adverse interests in the same or related matters, so long as the conditions of

paragraphs (b) and (c) concerning confidentiality have been met.

Comparison with Former Alabama Code of Professional Responsibility

DR 5-105(D) provided that “[i]f a lawyer is required to decline or to withdraw

from employment under DR 5-105, no partner or associate of his or his firm, may

accept or continue such employment.”

Note from the reporter of decisions: The order amending Rule 1.8, the Comment

to Rule 1.8, Rule 1.10(a), the Comment to Rule 1.10, Rule 1.12, Rule 1.14, the Comment

to Rule 1.14, the Comment to Rule 3.2, Rule 3.6, the Comment to Rule 3.7, Rule 3.9, and

Rule 4.4 is published in that volume of Alabama Reporter that contains Alabama cases

from 983 So.2d.