Ethics Tip of the Month - March 2014

Temporarily Yours

 

Tales from the front.   Here is an actual ETHICSearch inquiry received in January of this year

I would like to ask what the ethical issues might be regarding a practice that includes providing multiple small plaintiff's-side employment law firms with temporary associate attorney services.  I am concerned about issues regarding potential conflicts resulting from working for multiple firms, with many former clients, either at the same time or within a short time span.  Can the conflicts check be limited to the cases at hand and the temporary associate shielded from former clients?...

Any other insights regarding such a practice would be much appreciated.

Not unlike the petite Madeleine cake that nearly 100 years ago evoked remembrances of things past, this inquiry immediately brought to mind ABA Formal Opinion 88-356 Temporary Lawyers (1988)This opinion addressed the confidentiality (ABA Model Rule 1.6 Confidentiality of Information) and conflicts of Interest concerns (Model Rule 1.7 Conflict of Interest: Current Clients) voiced in the above inquiry.  The Opinion defined temporary lawyers as follows:

The temporary lawyer may work on a single matter for the firm or may work generally for the firm for a limited period, typically to meet temporary staffing needs of the firm or to provide special expertise not available in the firm and needed for work on a specific matter. The temporary lawyer may work in the firm's office or may visit the office only occasionally when the work requires. The temporary lawyer may work exclusively for the firm during a period of temporary employment or may work simultaneously on other matters for other firms.

Essentially, the opinion stated that the extent to which a temporary lawyer would be precluded from  working for other firms who have clients with interests adverse to clients represented by the current firm would depend upon the nature of the relationship between the temporary lawyer and the law firm.   If the relationship is similar to that of an associate who has general access to the matters handled by the firm, then under Model Rule 1.10  Imputation of Conflicts of Interest: General Rule knowledge of all matters handled by the firm would be imputed to the temporary lawyer, and he would be precluded from working for other firms who may have clients with interests adverse to the firm’s clients.  On the other hand, if the lawyer worked only on discrete matters and was carefully screened from access to all other firm matters, the lawyer would be akin to an outside lawyer and knowledge of the firm’s matters would not be imputed.  Formal Opinion 88-356 states:

Ultimately, whether a temporary lawyer is treated as being 'associated with a firm' while working on a matter for the firm depends on whether the nature of the relationship is such that the temporary lawyer has access to information relating to the representation of firm clients other than the client on whose matters the lawyer is working and the consequent risk of improper disclosure or misuse of information relating to representation of other clients of the firm.

The consequences of imputation of confidential information when a lawyer has an “associate” - type relationship with more than one law firm was explored more fully in ABA Formal Opinion 90-357  Use of Designation "Of Counsel"; Withdrawal of Formal Opinion 330 (1972) and Informal Opinions 678 (1963), 710 (1964), 1134 (1969), 1173 (1971), 1189 (1971) and 1246 (1972) (1990).  In that opinion, the Committee noted that while a lawyer can be of counsel to more than one law firm, the number of firms with which he can have such a relationship is limited since all the firms in effect become one firm for the purposes of conflicts of interest.  The opinion stated:

…As a practical matter, nonetheless, there is a consideration that is likely to put a relatively low limit on the number of "of counsel" relationships that can be undertaken by a particular lawyer: this is the fact that, as more fully discussed below, the relationship clearly means that the lawyer is "associated" with each firm with which the lawyer is of counsel. In consequence there is attribution to the lawyer who is of counsel of all the disqualifications of each firm, and, correspondingly, attribution from the of counsel lawyer to each firm, of each of those disqualifications.

 

Of course, if the temporary lawyer were to leave one firm where he had worked on a matter to work for a different firm that was handling the opposing party on the same matter, this would present a conflict.  Under these circumstances, recent amendments to Rule 1.10 in February and August of 2009 that post-date Formal Opinion 88-356 might permit the lawyer to work for the firm on other matters provided that he was timely screened from any participation in the original matter.  Note, however that not all jurisdictions permit screening under this circumstance.

 

State Bar Opinions

There have been several state bar opinions on this topic, many of which agree with the analysis in Formal Opinion 88-356.  See, e.g. Colorado State Bar Opinions 105 (1999) (Whether Rule 1.10(a), dealing with imputed disqualification, applies to a temporary lawyer depends upon whether the lawyer is deemed to be "associated" with a firm) and 121  (2009), Connecticut Opinion 06-06,  District of Columbia Opinion 352 Professional Responsibility Duties for Temporary Contract Lawyers and the Firms that Hire Them (2/10), Missouri Opinion 2003-0020 and Arizona Opinion 97-09.

For a contrary view, See Alabama Opinion 2007-03 (2007) that states as follows:

…The primary tenet of the functional analysis test is that the temporary lawyer may be screened from other matters while working for the hiring law firm and thus, avoid imputed disqualification. However, the effectiveness of using screens or "Chinese walls" has been questioned in recent years by several other jurisdictions. In fact, in RO 2002-01, we rejected the use of "Chinese walls" and determined that non-lawyer employees who change law firms must be held to the same standards as a lawyer in determining whether a conflict of interest exists. Similarly, the Disciplinary Commission sees no reason to differentiate between temporary lawyers and full-time lawyers. As such, for the purposes of Rule 1.10 and determining whether a conflict of interest exists, a temporary lawyer will be treated as a member or associate of the firm while employed by the firm.

 

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In order to avoid conflicts of interest issues when temporary lawyers work for more than one law firm, many state bar opinions suggest limiting their exposure to only those discrete matters that the lawyer has been retained to handle so that the temporary lawyer is not considered to be in effect an associate of the law firm.  Bear in mind, however that this analysis may not be accepted in all states.  As always, check the local Rules, court decisions and ethics opinions of the jurisdiction.

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