Ethics Opinion 312

Information That May Be Appropriately Provided to Check Conflicts When a Lawyer Seeks to Join a New Firm

When a lawyer contemplates moving to a new firm, it is necessary to determine whether prior work done by the lawyer on client matters may create a conflict of interest for the new firm. To check whether such conflicts exist, only information that does not constitute “confidences” or “secrets” may be revealed without client consent. However in most cases sufficient information can be disclosed to permit a conflicts check.

Applicable Rules

• Rule 1.6 (Confidentiality of Information)
• Rule 1.10 (Imputed Disqualification)

Background

In Opinion No. 273, we discussed a number of issues raised by the movement of lawyers from one firm to another. One such issue was the need to check for possible conflicts of interest between current and former clients of the lawyer’s existing firm and those of the new firm. This opinion expands on Opinion No. 273 by seeking to address possible confusion or uncertainty among lawyers who are proposing to move to a new firm about the extent to which they can reveal information to their prospective new firms for the purpose of undertaking such conflict checks.¹

Discussion

To understand what information a lawyer may appropriately reveal in checking conflicts with a new firm, a brief review of the standards that apply in those circumstances should be helpful. D.C. Rule 1.10(b) provides specific guidance on what creates a conflict of interest with respect to client relationships on which the moving lawyer is no longer participating when the lawyer joins the new firm.² That Rule provides that where a lawyer joins a firm, that firm may not represent a client in any matter that is the same as or substantially related to a matter on which the lawyer formerly worked for a client adverse to the present firm’s client, but only where the moving lawyer “has in fact acquired information protected by Rule 1.6 that is material to the matter.”

In several ways, this is a narrower test than the former-client substantial relationship test as imposed by the combination of Rule 1.9 and Rule 1.10(a) in the case of a lawyer who is not changing firms. First, under Rule 1.9, the receipt of confidential information in the earlier representation is presumed if the later matter for a different client is “substantially related.” Where such a presumption is made, a lawyer will generally not be heard to assert that the lawyer did not actually receive such information.³ By contrast, Rule 1.10(b) turns on whether a lawyer actually received confidential information in the earlier representation that is material to the current matter.

Second, under Rule 1.10(b) a moving lawyer’s former clients for conflict-checking purposes do not include every client in the former firm but only those clients on whose matters the lawyer actually worked. Comment [19] states in part: “Thus, not all of the clients of the [lawyer’s] former firm . . . are necessarily deemed former clients of [the moving lawyer]. Only those clients with whom the [moving lawyer] in fact personally had a lawyer-client relationship are former clients within the terms of [Rule 1.10(b)].”⁴ Therefore, when a lawyer is in firm A the provisions of Rule 1.10(a) impute to that lawyer any disqualification of any lawyer in the firm under the conflict of interest rules (specifically 1.7, 1.8(b), 1.9, or 2.2), whether or not the lawyer is involved with the conflict-causing representation. But when that lawyer moves to firm B the only conflicts that the lawyer carries along from firm A are those caused by client representations in which the lawyer actually participated. Conflicts that applied to the lawyer while in firm A only because of the imputation required by Rule 1.10(a) do not apply when the lawyer is moving to another firm.

Third, as noted in Opinion 273, in order to trigger disqualification of the new firm under Rule 1.10(b), it is not sufficient for the moving lawyer simply to have participated in the representation of the client at the former firm. Rather, disqualification is appropriate only where that lawyer has “acquired information protected by Rule 1.6 that is material to the matter.” Therefore, as Opinion No. 273 says, this provision “leaves open the possibility that a lawyer, such as an associate who had only a peripheral involvement in a matter (as by preparing a research memorandum on a point of law), would not subject his new firm to disqualification under Rule 1.10(b) because that lawyer did not learn any client confidences in the course of the representation.”⁵

This narrower scope of Rule 1.10(b) reflects the policy favoring attorney mobility; the concern was that the broader test of Rules 1.9 and 1.10(a), if applied in the context of lawyers changing firms, would result in a “radical curtailment of the opportunity of lawyers to move from one practice setting to another and of the opportunity of clients to change counsel.” Comment [10] to Rule 1.10.

Typically, when a lawyer contemplates joining a new firm, the lawyer provides information to that firm indicating the clients, adversaries, and an indication of the subject matter on which the lawyer has worked at the lawyer’s existing firm so that the potential new firm may check to see whether the lawyer’s joining it would create a conflict of interest with any of that firm’s clients.⁶ What can a lawyer contemplating such a move firm reveal to that firm in providing that information? Rule 1.6 governs the answer to this question. Subsections (a) and (f) require lawyers not to reveal “confidences” and “secrets” of a client or former client. (Of course under Rule 1.6(d)(1) a client may consent to disclosure of a confidence or secret, but we will assume here that no such consent has been obtained.) Rule 1.6(b) defines “confidence” as “information protected by the attorney-client privilege under applicable law”—a reminder that the scope of the privilege is a matter of substantive law and not an appropriate subject for an opinion of this Committee. We will assume that the privilege covers communications made in confidence by the client to the lawyer for the purpose of obtaining legal advice and communications from the lawyer to the client that might reflect the substance of those client-lawyer confidential communications. See Evans v. Atwood, 177 F.R.D. 1 (D.D.C. 1997).

Rule 1.6(b) then defines “secret” as “other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing, or would likely be detrimental, to the client.” A “secret” may be information gained from another source than the client and may be shared by others without losing its status as a secret. Comment [6] to Rule 1.6; see our Opinions No. 83 and 246. As Comment [6] to Rule 1.6 states, the requirement to protect secrets “reflects not only the principles underlying the attorney-client privilege, but the lawyer’s duty of loyalty to the client.”

Thus the critical point in identifying secrets is not whether the information came from the client or who else knows it, but whether it was “gained from the professional relationship” and (1) the client has asked that it be held inviolate or (2) revelation of it would be embarrassing or likely detrimental to the client.⁷ An illustration of the limitation on the scope of “secrets” is contained in Comment [8] to the D.C. version of Rule 1.6, which observes that with respect to a former representation at least, “secrets” do not include information that has become “generally known.” We believe that in the context of a lawyer who has moved, or is contemplating a move, to another firm and is determining what information may be revealed for checking conflicts with that firm, the bar on revealing “secrets,” in addition to not applying to information that is harmless or unexceptionable, would also not prevent the lawyer from discussing information that would otherwise be a secret but has become generally known.⁸

We stress that we are here referring to information that is truly generally known so that the lawyer in question is certain that the information is not new to the person whom the lawyer is discussing it with. For example, if the press has widely reported that a particular corporation was one of several that had been sued by a federal agency, then it could hardly be argued that a moving lawyer had revealed a “secret” by mentioning that he or she had worked on that litigation at the existing firm. The lawyer must make the judgment of whether particular information is a secret or not (see our Opinion No. 128). We caution that because such decisions are made in the almost entirely private context of a lawyer seeking employment in another firm, the lawyer must err on the side of protecting information where any doubt exists.

Without the former client’s consent, therefore, a lawyer may, in checking conflicts at a new firm, reveal information about representations that is not privileged and is not a secret because it has not been requested by that client to be held inviolate and the revelation of which would not be harmful or embarrassing to that client or has become generally known. In the great majority of cases, we believe, this leaves lawyers free to reveal sufficient information to carry out a reliable conflict check. Information about many representations would not harm or embarrass the client where the basic facts of the representation are unexceptionable or already known to opponents or others who are not the client, including, for example, regulatory agencies or other government bodies.

Moreover, it is typically necessary to reveal only the most general information about a representation in order to determine, positively or negatively, whether a representation may cause a conflict. This is clear from the holding in T.C. Theatre Corp. v. Warner Brothers Pictures mentioned above. See also, Brown, supra, 486 A. 2d at 49-50. In T.C. Theatre, a lawyer’s former client was the opponent in litigation of the lawyer’s current client, and the former client moved to disqualify that lawyer and the lawyer’s firm, claiming that in the former representation the lawyer learned confidential information from the then-client that would presently be useful in opposing that former client. The lawyer denied that he had received such information in the former representation. Judge Weinfeld ruled that to inquire into the truth of the assertions about what information had been confided in the earlier representation would require the revelation of the very confidential information sought to be protected. To avoid that, he held, the appropriate inquiry would be whether the current representation was “substantially related” to the former. If it was, then it would be presumed that confidences were given in the former representation that would be of use against the former client in the latter. To effectuate this test, the subject matter of former representation is described in general terms and compared to the current representation. As noted above, this standard is codified in Rule 1.9 of the D.C. Rules as the primary determinant of whether a lawyer may oppose the interests of a former client on particular issues. As we have described, to avoid discouraging lawyer mobility Rule 1.10(b) imports a narrower version of the substantially related test (under which the subject matter is compared but there must be actual possession by the lawyer of protected information rather than simply presuming possession); but the basic process of comparing representations to determine whether they involve similar subject matter is the same under Rule 1.10(b) as it is under Rule 1.9. It could hardly have been intended that Rule 1.10(b) impose a standard for checking conflicts that cannot be applied without revealing secrets protected by Rule 1.6.

There are, of course, many instances in which the facts surrounding a representation (such as that client X is contemplating a takeover of another business or has consulted a divorce lawyer or a criminal defense lawyer) may be extremely sensitive and so fraught with the possibility of injury or embarrassment to that client that absent a waiver that information is not subject to disclosure even for the purpose of checking conflicts.⁹

See D.C. Rule 1.7, comment [19]. There is no specific exemption to the confidentiality rules in Rule 1.6 or elsewhere that permits a lawyer to reveal confidential information for the purpose of checking or seeking waiver of a conflict. This does not, mean, however, that there are no techniques that may in many cases allow conflicts to be adequately checked while at the same time assuring confidentiality to the full measure required by the Rules. A helpful discussion of possible approaches is provided in New York State Bar Opinion No. 720 (1999). Some rough guidelines or suggestions follow. However, the appropriateness and usefulness of such shortcut techniques as these suggested here can really only be judged on a case by case basis.

• As noted above, as a general rule it is merely necessary to compare the client name and the general subject matter of the representation. This information is often, though not always, neither privileged nor a secret.

• In some cases, identifying a particular issue or subject matter without identifying the client name may be sufficient to determine the lack of any conflict (see Opinion No. 265 on positional conflicts).

• If the subject matter but not the client name is sensitive, it will often be possible to avoid the sensitive areas if the moving lawyer mentions only the client name and asks the firm if that causes a problem. If it does not there may not be any need to determine whether the subject matter of that representation presents any problem.¹⁰

• If the identity of the client creates a problem (for example because the moving lawyer’s practice specialty—for example, criminal law—would in combination with the client name reveal too much), it may be possible for the moving lawyer to name, instead of the client, those persons or entities to whom or which that client is adverse. If the firm does not represent them, there may well be no problem.

• At least as a first stage in an inquiry, it may be possible to avoid revealing confidences and secrets by providing a list of names to the firm without revealing which are clients and which adverse parties, perhaps also presenting the names in alphabetical or other order so as not to suggest associations. Depending on the substance of the firm’s reaction or lack thereof to the names on the list, it may well be possible to discern that there is no problem without revealing additional information.

Adopted: April 2002
Published: May 2002

1. Where a lawyer joining a firm is concerned about conflicts that may have been caused by work done before becoming a lawyer, as a law clerk, summer associate, paralegal assistant, or other nonlawyer assistant, Rule 1.10(b) does not require disqualification of the firm which the lawyer is joining in any event, but other considerations apply. See Opinion No. 227.
2. Rule 1.10(b), extending to situations where a lawyer “had previously represented a client,” covers both instances where the client matter has ended at the lawyer’s former firm (or other employment) and where the matter may be continuing but the moving lawyer is no longer working on that matter.
3. See T.C. Theatre Corp. v. Warner Brothers Pictures, 113 F. Supp. 265 (S.D.N.Y. 1953). T.C. Theatre is cited in comment [2] to Rule 1.9. Cf. Brown v. District of Columbia Board of Zoning Adjustment, 486 A.2d 37 (DC 1984)(en banc) (applying the “substantially related” test under the former Code of Professional Responsibility in the context of determining disqualification of a former government employee).
4. The phrase “personally had a lawyer-client relationship” covers any situation in which the lawyer actually worked on a client matter, regardless of whether the lawyer had a “personal” relationship with the client.
5. Actually, this portion of Opinion No. 273 may be subject to misinterpretation if it is read to suggest that the only information protected under Rule 1.6 is client “confidences”—information protected by the attorney-client privilege. Rule 1.6 also requires the lawyer to keep “secrets” confidential, secrets being defined as “other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing, or would likely be detrimental, to the client.” It is, of course, extremely important for lawyers to be scrupulous in determining whether they may have such information.
6. It is not possible to generalize about how this process does or should occur. Typically, by comparison to the moving lawyer, the firm has more clients and a system, often computerized, for checking conflicts (cf. the final sentence of Comment [11], Rule 1.7) so it makes sense for the moving lawyer to supply this information to the firm, to be checked against the firm’s system. But there may often be circumstances (for example, where the moving lawyer or the firm have specialized practices) where the moving lawyer should make particular inquiry as to whether the firm represents particular clients, is adverse to particular entities, or is involved in specific issues or controversies.
7. Subsections (a) and (b) of Rule 1.6 are substantially identical to DR 4-101(B) and (A) of the former Code of Professional Responsibility. The D.C. Bar recommended that that language be retained in Rule 1.6 over the then-new ABA Model Rule of Professional Conduct because the ABA model Rule 1.6 language was “broader than warranted.” Report of the D.C. Bar Model Rules of Professional Conduct Committee (the so-called Jordan Committee) and the Board of Governors, November 19, 1986, at 52. The Jordan Committee noted that the ABA version of the rule barred lawyers from revealing any information “relating to the representation.” As an example of the overbreadth of this formulation, the Committee noted that information would be protected by it if that information came to the lawyer via a newspaper after the representation had ended. Id. While the Jordan Committee did not mention this, the ABA version would also bar the lawyer from mentioning any such information even if it could not possibly cause injury, or even were favorable, to the client. We think it plain that this is another example of overbreadth of the ABA version when compared to the DC Rule, which protects as “secrets” only information that the client has requested be held inviolate or the revelation of which would embarrass or be deleterious to the client.
8. We doubt that the word “reveal” (Rule 1.6(a)(1)) even properly applies to the act of stating a fact to a hearer who already knows that fact. Further, it is questionable whether the act of disclosing a fact to a person can embarrass or be detrimental to someone within the meaning of the definition of “secret” in Rule 1.6(b) if the person to whom it was disclosed already knows it.
9. This is a familiar difficulty in the context of seeking a waiver of a conflict. Even where a lawyer believes that a waiver would be given, it cannot be sought if in order to inform the would-be waiving client sufficiently it is necessary to reveal confidential information about the other client the revelation of which would not be consented to.
10. This is likely to be a successful technique much of the time. It cannot be presented as effective as a rule, however, because the issue may be one that affects persons not actually designated as adverse. Again, see Opinion No. 265 (positional conflicts).