TLIE Top Tip: New Rule 1.10, Imputation of Conflicts of Interest: Part 1
TLIE Top TipsIn general, new Rule 1.10 tells us that if any lawyer in a firm has a conflict, then that conflict will be imputed to the entire firm. See, Rule 1.10(a). A firm of lawyers is essentially one lawyer for the purposes of client loyalty. Cmt. 1 to Rule 1.10.
That said, if the conflict is based on a personal interest of a lawyer and does not present a significant risk of materially limiting the representation by the other lawyers in the firm, then the representation can go forward because client loyalty and confidentiality are not at issue. See, Rule 1.10(a)(1) and cmt. 2. For example, if Lawyer A is on the board of the historic building preservation society and is adamantly against demolition for the sake of new development, Lawyer A’s personal beliefs will not conflict the rest of the attorneys in the firm from representing a developer who wants to tear down older homes to build new apartments so long as Lawyer A does not work on the developer’s legal matter.
Additionally, if the person with the conflict is a non-lawyer, or the conflict arose from a time when the person was a non-lawyer (such as when they were a law student), then the rest of the firm is not conflicted. Cmt. 3 to Rule 1.10.
Last, a firm can represent a person adverse to a client of a departed attorney unless the matter is the same or substantially related to that in which the departed attorney represented the client and any lawyer in the firm has confidential information material to the matter. Rule 1.10(b). A very simple example follows: Lawyer A at Firm A represented Sue in a PI case. No other attorney at Firm A worked on the case and no one else has any confidential information about Sue. After the PI representation of Sue ended, Lawyer A left Firm A. Firm A now wants to represent Jim against Sue in a divorce. On these facts, Firm A can represent Jim because it is not a substantially related matter and no lawyer in Firm A has confidential information that is material to the matter. This would be true even if Lawyer A’s representation of Sue ended and Lawyer A left the firm only days prior to the new representation. See, Cmt. 4 to Rule 1.10.
Disqualifications under this Rule can be waived by the affected client under the conditions set out in Rule 1.06.
A reminder that these new Rules are now in effect as of October 1, 2024, and TLIE has a one-hour ethics CLE available that discusses all of the new Rules.
