Reporter's Explanation of Changes
TEXT:
1. Paragraph (a): Eliminate imputation of conflicts under Rules 1.8(c) and 2.2
The reference to Rule 2.2 has been deleted because the Commission is recommending elimination of that Rule. The reference to Rule 1.8(c) has been deleted because the Commission is recommending that imputation of the prohibitions in Rule 1.8 be addressed by Rule 1.8 rather than by Rule 1.10. Under Rule 1.8(k) the prohibitions set forth in paragraphs 1.8(a) through (i), but not (j), are imputed to other lawyers with whom the personally disqualified lawyer is associated.
2. Paragraph (a): Eliminate imputation of "personal interest" conflicts
The proposed reference to "personal interest" conflicts at the end of Rule 1.10(a) would eliminate imputation in the case of conflicts between a lawyer's own personal interest (not interests of current clients, third parties or former clients) and the interest of the client, at least where the usual concerns justifying imputation are not present. The exception applies only where the prohibited lawyer does not personally represent the client in the matter and no other circumstances suggest the conflict of the prohibited lawyer is likely to influence the others' work. This is a substantive change in the Rule as written, but the Commission believes that the proposed Rule provides clients with all the protection they need, given that the exception applies only when there is no significant risk that the personal-interest conflict will affect others in the lawyer's firm.
3. Paragraph (c): Screening of lateral hires
A number of jurisdictions now provide that former-client conflicts of lawyers who have moved laterally are not imputed to the new law firm if the personally disqualified lawyer has been timely screened from participation in the matter and the former client is notified of the screen. The Commission is recommending that current Rule 1.10 be amended to permit nonconsensual screening of lawyers who have joined a law firm.
The Commission is persuaded that nonconsensual screening in these cases adequately balances the interests of the former client in confidentiality of information, the interests of current clients in hiring the counsel of their choice (including a law firm that may have represented the client in similar matters for many years) and the interests of lawyers in mobility, particularly when they are moving involuntarily because their former law firms have downsized, dissolved or drifted into bankruptcy. There are presently seven jurisdictions that permit screening of laterals by Rule. The testimony the Commission has heard indicates that there have not been any significant numbers of complaints regarding lawyers' conduct under these Rules.
4. Paragraph (c)(1): Timely screening
This paragraph tracks similar language in current Rule 1.11(a) and in Rule 1.12(c), except that it adds the requirement that the screen be "timely" implemented. A similar requirement is being proposed for those Rules as well and also for Rule 1.18. The term "screened" is defined in Rule 1.0(k) and in Comments [8] - [10] of that Rule.
5. Paragraph (c)(2): Written notice
This paragraph tracks similar language in current Rule 1.11(a) and 1.12(c).
6. Paragraph (e): Relationship of this Rule to Rule 1.11
This paragraph clarifies that Rule 1.11 is intended to be the exclusive Rule governing the imputation of conflicts of interests of current or former government lawyers.
COMMENT:
Definition of "Firm"
The Commission is recommending adoption of a definition of "firm" in Rule 1.0(c). That definition will apply not only for purposes of imputing conflicts under this Rule, but also for addressing the supervisory obligations of lawyers under Rules 5.1 - 5.3. The definition in Rule 1.0(c) and the Comments to that Rule were based on the current Comment to Rule 1.10. As a result, the Commission is recommending deleting that material in this Comment.
[1] This Comment modifies the first two sentences in the current Comment to reflect what is now in Rule 1.0(c). Cross-references to that Rule and its Comment have been added. The remainder of the Comment is deleted because the material has been moved to the Comment to Rule 1.0.
[2] and
[3] The material in these Comments has been moved to the Comment to Rule 1.0.
[5] Current Comment [5] has been deleted because the conflicts arising from moving between government and a private firm are discussed in Rule 1.11.
[3] This entirely new Comment deals with the elimination of imputation of a lawyer's "personal-interest" conflicts to others in the firm because there is no risk to loyal and effective representation of the client. The Comment also provides illustrations of when this exception to imputation might and might not apply.
[4] This entirely new Comment explains how this Rule applies to persons who are nonlawyers, e.g., secretaries, or who obtained their disqualifying information while a nonlawyer, e.g., while a law student. Such persons are disqualified personally, but the conflict is not imputed so long as they are screened from participation in the matter so as to protect the confidential information. This Comment represents a substantive change from the current text of Rule 1.10, but it represents the overwhelming state of the current case law and is intended to give guidance to lawyers about important practical questions.
[6] This entirely new Comment addresses paragraph (c). The second sentence clarifies that courts may impose more stringent standards on lawyers in determining whether to disqualify a lawyer from representing a client in pending litigation.
[7] This entirely new Comment addresses the requirements of paragraph (c)(2) and includes a cross-reference to the definition of "screened" in Rule 1.0(k).
[8] This entirely new Comment addresses the requirements of paragraph (c)(3).
[9] This entirely new Comment deals directly with the availability of and conditions for consent, a subject heretofore largely ignored in this Rule. The Comment notes that consent may be conditioned on screening the disqualified lawyer, but, other than that reference, no provision for general screening under Rule 1.10 without the consent of the opposing party is proposed.
[10] The minor proposed amendments to current Comment [4] are designed to make clear that in the case of current and former government lawyers, imputation is governed by Rule 1.11. Under the current Rules, the application of Rule 1.10 to such lawyers is unclear.
[11] Historically lawyers have relied on paragraph (a) of Rule 1.10 for a complete list of the conflict Rule numbers and paragraph references that trigger imputed disqualification. All references to Rule 1.8 have been removed from Rule 1.10(a) because none of the Rule 1.8 paragraphs fit logically or grammatically in Rule 1.10(a). The Commission added this new Comment for the assistance of lawyers who look to Rule 1.10 to determine if the prohibitions of Rule 1.8 apply to other lawyers in the firm.
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