TLIE Top Tip: New Rule 1.10, Imputation of Conflicts of Interest: Part 2
TLIE Top TipsSimilar to ABA Model Rule 1.10, Texas Disciplinary Rule of Professional Conduct 1.10(a)(2) now allows a firm to proceed with the representation of a client adverse to a former client of an attorney in the firm when the conflict arises from that attorney’s association with a prior firm. The firm’s representation, however, is dependent on the timely screening of that attorney in accordance with Rule 1.10(a)(2)(i), and written notice being given to the former client in compliance with Rule 1.10(a)(2)(ii). In essence, Rule 1.10(a)(2) provides a different mechanism to remove imputation of a former client conflict from an entire firm without having to obtain informed consent, confirmed in writing from that former client. (See amended Rule 1.09 and our Top Tip from October 10, 2024 for a discussion regarding waiver by the former client after informed consent is obtained in writing).
The following is an example of how Rule 1.10(a)(2) may work:
- Lawyer X represented Wife in divorce from Husband while at Firm A
- Lawyer X leaves Firm A to go to Firm B
- Firm B represents Husband in a modification proceeding related to the divorce
- Prior to Lawyer X starting employment at Firm B, and prior to any communication of confidential information by Lawyer X to Firm B about Wife, Firm B timely implements a screening plan with procedures reasonably adequate under the circumstances to isolate Lawyer X from Husband’s matter
- All lawyers and staff in Firm B are informed of the screen
- Lawyer X and the lawyers working on Husband’s matter acknowledge the obligation not to communicate with each other about Husband’s matter
- Firm B timely gives written notice to Wife that includes:
- A description of screening procedures employed
- A statement of Firm B’s and Lawyer X’s compliance with Rule 1.10
- An agreement by Firm B to respond promptly to any written inquiries/objections by Wife about the screening
- Lawyer X receives no part of the fee from the representation of Husband
It is important to note that the fact of screening will not automatically save the firm from disqualification by a tribunal. See, cmt. 6 to Rule 1.10.
TLIE insureds can email rskmgmt@tlie.org for a form screening plan with procedures to isolate a disqualified attorney from a legal matter, as well as a form of the required written notice to send to the affected former client. Additionally, TLIE has a one-hour ethics CLE available that discusses all of the new Rules.
