Rule 1.10. Imputation of conflicts of interest: General rule

« Rule 1.10. »

(a) Except as otherwise provided in this rule, while lawyers are

associated in a firm, none of them shall knowingly represent a client when

any one of them practicing alone would be prohibited from doing so by

Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of

the prohibited lawyer and does not present a significant risk of materially

limiting the representation of the client by the remaining lawyers in the

firm.

(b) 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 and not currently represented by the firm, 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(c) that is material to the matter.

(c) When a lawyer becomes associated with a firm, no lawyer associated

in the firm shall knowingly represent a client in a matter in which that

lawyer is disqualified under Rule 1.9 unless:

(1) the personally disqualified lawyer is timely screened from any

participation in the matter and is apportioned no part of the fee therefrom;

and

(2) written notice is promptly given to the affected former client.

(d) A disqualification prescribed by this rule may be waived by the

affected client under the conditions stated in Rule 1.7.

that

lawyer is disqualified under Rule 1.9 unless:

(1) the personally disqualified lawyer is timely screened from any

participation in the matter and is apportioned no part of the fee therefrom;

and

(2) written notice is promptly given to the affected former client.

(d) A disqualification prescribed by this rule may be waived by the

affected client under the conditions stated in Rule 1.7.

(e) The disqualification of lawyers associated in a firm with former or

current government lawyers is governed by Rule 1.11.

COMMENT

[1] 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. See Rule 1.0(c).

Whether two or more lawyers constitute a firm within this definition can

depend on the specific facts. See Rule 1.0, Comments [2]-[4].

[2] 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 Rules 1.9(b) and 1.10(b).

[3] The rule in paragraph (a) does not prohibit representation where

neither questions of client loyalty nor protection of confidential

information are presented

ed 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 Rules 1.9(b) and 1.10(b).

[3] The rule in paragraph (a) does not prohibit representation where

neither questions of client loyalty nor protection of confidential

information are presented. Where one lawyer in a firm could not

effectively represent a given client because of strong political beliefs, for

example, but that lawyer will do no work on the case and the personal

beliefs of the lawyer will not materially limit the representation by others

in the firm, the firm should not be disqualified. On the other hand, if an

opposing party in a case were owned by a lawyer in the law firm, and

others in the firm would be materially limited in pursuing the matter

because of loyalty to that lawyer, the personal disqualification of the

lawyer would be imputed to all others in the firm.

[4] The rule in paragraph (a) also does not prohibit representation by

others in the law firm where the person prohibited from involvement in a

matter is a nonlawyer, such as a paralegal or legal secretary. Nor does

paragraph (a) prohibit representation if the lawyer is prohibited from acting

because of events before the person became a lawyer, for example, work

that the person did while a law student. Such persons, however,

ordinarily must be screened from any personal participation in the matter

on prohibited from involvement in a

matter is a nonlawyer, such as a paralegal or legal secretary. Nor does

paragraph (a) prohibit representation if the lawyer is prohibited from acting

because of events before the person became a lawyer, for example, work

that the person did while a law student. Such persons, however,

ordinarily must be screened from any personal participation in the matter

to avoid communication to others in the firm of confidential information

that both the nonlawyers and the firm have a legal duty to protect. See

Rules 1.0(k) and 5.3.

[5] Rule 1.10(b) operates to permit a law firm, under certain

circumstances, to represent a person with interests directly adverse to

those of a client represented by a lawyer who formerly was associated with

the firm. The Rule applies regardless of when the formerly associated

lawyer represented the client. However, the law firm may not represent a

person with interests adverse to those of a present client of the firm, which

would violate Rule 1.7. Moreover, the firm may not represent the person

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

formerly associated lawyer represented the client and any other lawyer

currently in the firm has material information protected by Rules 1.6 and

1.9(c).

[6] Where the conditions of paragraph (c) are met, imputation is

removed, and consent to the new representation is not required. Lawyers

should be aware, however, that courts may impose more stringent

obligations in ruling upon motions to disqualify a lawyer from pending

litigation.

[7] Requirements for screening procedures are stated in Rule 1.0(k).

Paragraph (c)(2) does not prohibit the screened lawyer from receiving a

salary or partnership share established by prior independent agreement,

but that lawyer may not receive compensation directly related to the matter

in which the lawyer is disqualified

n ruling upon motions to disqualify a lawyer from pending

litigation.

[7] Requirements for screening procedures are stated in Rule 1.0(k).

Paragraph (c)(2) does not prohibit the screened lawyer from receiving a

salary or partnership share established by prior independent agreement,

but that lawyer may not receive compensation directly related to the matter

in which the lawyer is disqualified.

[8] Notice, including a description of the screened lawyer’s prior

representation and of the screening procedures employed, generally should

be given as soon as practicable after the need for screening becomes

apparent.

[9] Rule 1.10(c) removes imputation with the informed consent of the

affected client or former client under the conditions stated in Rule 1.7. The

conditions stated in Rule 1.7 require the lawyer to determine that the

representation is not prohibited by Rule 1.7(b) and that each affected

client or former client has given informed consent to the representation,

confirmed in writing. In some cases, the risk may be so severe that the

conflict may not be cured by client consent. For a discussion of the

effectiveness of client waivers of conflicts that might arise in the future,

see Rule 1.7, Comment [22]. For a definition of informed consent, see

Rule 1.0(e).

[10] Where a lawyer has joined a private firm after having represented

the government, imputation is governed by Rule 1.11 (b) and (c), not this

Rule. Under Rule 1.11(d), where a lawyer represents the government after

having served clients in private practice, nongovernmental employment or

in another government agency, former-client conflicts are not imputed to

government lawyers associated with the individually disqualified lawyer.

[11] Where a lawyer is prohibited from engaging in certain transactions

under Rule 1.8, paragraph (k) of that Rule, and not this Rule, determines

whether that prohibition also applies to other lawyers associated in a firm

with the personally prohibited lawyer.

NOTES TO DECISIONS

mer-client conflicts are not imputed to

government lawyers associated with the individually disqualified lawyer.

[11] Where a lawyer is prohibited from engaging in certain transactions

under Rule 1.8, paragraph (k) of that Rule, and not this Rule, determines

whether that prohibition also applies to other lawyers associated in a firm

with the personally prohibited lawyer.

NOTES TO DECISIONS

Conflicts of interest.

Imputed conflicts.

Screening.

Conflicts of interest.

Analysis

Where a driver’s parent had been previously represented by a member

of the injured parties’ law firm, but the driver was not previously

represented by the injured parties’ attorney or the attorney’s law firm, the

driver did not show a sufficient basis to disqualify the attorney or the firm

based on a conflict of interest. Deptula & Swontek v. Steiner, 2003 Del.

Super. LEXIS 412 (Del. Super. Ct. Dec. 15, 2003).

An appropriate test for determining whether matters are substantially

related for conflict purposes involves a court considering the nature and

scope of the prior representation, the nature and scope of the present

lawsuit, and whether the client may have revealed relevant confidential

information to its counsel during the prior representation, and if so,

whether the confidential information could be used against the former

client in the current lawsuit; 2 matters may also be substantially related if

there is a substantial risk that confidential factual information as would

normally have been obtained in the prior representation would materially

advance the client’s position in the subsequent matter. Sanchez-Caza v.

Estate of Whetstone, 2004 Del. Super. LEXIS 300 (Del. Super. Ct. Sept. 16,

2004).

General information regarding a corporate client’s business practices is

not enough to deny representation by a present party’s chosen counsel;

knowledge of specific facts gained in a prior representation, relevant to the

matter in question, ordinarily will preclude representation. Sanchez-Caza

v

nchez-Caza v.

Estate of Whetstone, 2004 Del. Super. LEXIS 300 (Del. Super. Ct. Sept. 16,

2004).

General information regarding a corporate client’s business practices is

not enough to deny representation by a present party’s chosen counsel;

knowledge of specific facts gained in a prior representation, relevant to the

matter in question, ordinarily will preclude representation. Sanchez-Caza

v. Estate of Whetstone, 2004 Del. Super. LEXIS 300 (Del. Super. Ct. Sept.

16, 2004).

Trial court denied a motion to disqualify plaintiff’s counsel, as prior

representation of a defendant by the same law firm involved a case that

was not at all substantially related; any alleged release of confidential

information was deemed minimal by the trial court. Sanchez-Caza v. Estate

of Whetstone, 2004 Del. Super. LEXIS 300 (Del. Super. Ct. Sept. 16, 2004).

Counsel representing the wife in a divorce proceeding did not have to be

disqualified from that representation where a paralegal in the husband’s

firm stopped working for that firm and went to work for the law firm

representing the wife as: (1) the paralegal had performed a minimal amount

of work on the case; (2) the paralegal and wife’s counsel had maintained

a “cone of silence” on the matter by not speaking about it, minimizing

the possibility that confidential information could be passed along; and

(3) no showing had been made regarding a breach of client

confidentiality in violation of Law R. Prof. Conduct 1.9(b) or 1.10(c). In re

Marriage of C., 2008 Del. Fam. Ct. LEXIS 124 (Del. Fam. Ct. Oct. 6,

2008).

Public defender’s office failed to prove an actual conflict of interest

existed in the office’s prior representation of a State’s witness and

defendant, and was not entitled to withdraw as counsel for defendant,

because: (1) the office’s representation of the witness and defendant were

not substantially related; and (2) the witness was represented by a

different public defender than those representing defendant. State v. Kent,

2014 Del. Super

onflict of interest

existed in the office’s prior representation of a State’s witness and

defendant, and was not entitled to withdraw as counsel for defendant,

because: (1) the office’s representation of the witness and defendant were

not substantially related; and (2) the witness was represented by a

different public defender than those representing defendant. State v. Kent,

2014 Del. Super. LEXIS 558 (Del. Super. Ct. Sept. 3, 2014).

Imputed conflicts.

Where plaintiff had an attorney-client relationship for almost two years

before entering into a service agreement for dairy farm with another

attorney in the same firm, the original attorney-client relationship must be

imputed to the second contracting attorney. Burger v. Level End Dairy

Investors, 125 B.R. 894 (Bankr. D. Del. 1991).

Duty of loyalty to a former client not only applies to the individual

attorney, but is imputed to the law firm, as a firm of lawyers is essentially

considered one lawyer for purposes of the rules governing loyalty to the

client; as members of the same law firm, attorneys are expected to avoid

conflicts of interests that arise not only with their own former clients, but

all former clients of the firm. Sanchez-Caza v. Estate of Whetstone, 2004

Del. Super. LEXIS 300 (Del. Super. Ct. Sept. 16, 2004).

There was no basis to disqualify a former paramour’s attorney in a

support action, because although the attorney was employed in a law firm

also employing an attorney currently dating the former paramour: (1)

there was no a significant risk of material limitation to the representation;

(2) there was no conflict of interest; and (3) the attorney’s testimony about

attorneys’ fees was within an exception under the professional conduct

rules. Bark v. May, 2015 Del. Super. LEXIS 530 (Del. Super. Ct. Sept. 28,

2015).

Disqualification of a patient’s chosen law firm was warranted because:

paramour: (1)

there was no a significant risk of material limitation to the representation;

(2) there was no conflict of interest; and (3) the attorney’s testimony about

attorneys’ fees was within an exception under the professional conduct

rules. Bark v. May, 2015 Del. Super. LEXIS 530 (Del. Super. Ct. Sept. 28,

2015).

Disqualification of a patient’s chosen law firm was warranted because:

(1) the patient’s attorney and another attorney were partners during

previous representation of the doctor at issue in a separate matter; (2) the

attorneys continued to be partners in the instant matter; and (3) the remedy

of “screening off” did not apply in cases of a long-standing partnership.

Bleacher v. Bose, 2017 Del. Super. LEXIS 223 (Del. Super. Ct. May 3,

2017).

Screening.

An appropriate screening mechanism, in the proper circumstances, may

rebut the presumption of shared confidences that arises under this rule in

cases where the disqualified attorney’s conflict of interest originated in

private practice. Nemours Found. v. Gilbane, Aetna, Fed. Ins. Co., 632 F.

Supp. 418 (D. Del. 1986), disapproved, Atasi Corp. v. Seagate Technology,

847 F.2d 826 (Fed. Cir. 1988).

The screening procedure relating to lawyers in conflict of interest areas

should be referred to figuratively as a “cone of silence” rather than a

“Chinese wall”; the conical image more appropriately describes the

responsibility of the individual attorney to guard the secrets of his former

client. He is commanded by the ethical rules to seal, or encase, these

particular confidences within his own conscience. The latter term is

suggestive of attempts in the context of a large law firm to physically

cordon off attorneys possessing information from the other members of

the firm who represent clients whose interests are adverse to interests of

these attorneys’ former clients. Nemours Found. v. Gilbane, Aetna, Fed.

Ins. Co., 632 F. Supp. 418 (D. Del. 1986), disapproved, Atasi Corp. v.

Seagate Technology, 847 F.2d 826 (Fed. Cir

ive of attempts in the context of a large law firm to physically

cordon off attorneys possessing information from the other members of

the firm who represent clients whose interests are adverse to interests of

these attorneys’ former clients. Nemours Found. v. Gilbane, Aetna, Fed.

Ins. Co., 632 F. Supp. 418 (D. Del. 1986), disapproved, Atasi Corp. v.

Seagate Technology, 847 F.2d 826 (Fed. Cir. 1988).

Although an attorney who previously represented a doctor in a medical

negligence claim against the doctor was disqualified from representing a

patient and that patient’s husband in their medical negligence claim against

the doctor, there was no conflict that prevented the attorney’s firm from

continuing to represent the patient and the patient’s husband provided

that the appropriate steps were taken to “wall off” the attorney from

further representation pursuant to Law. R. Prof. Conduct 1.10(c).

Fernandez v. St. Francis Hosp., 2009 Del. Super. LEXIS 287 (Del. Super.

Ct. Aug. 3, 2009).

Del. Rules of Prof'l Conduct Rule 1.11

« Rule 1.11. »