Model Rule 1.10

Reporter’s Explanation of Changes

Ethics 2000 Commission Draft for Public Comment

March 23, 1999

TEXT:

1. Substitution of a "reasonably should know" standard for "actual knowledge"

Rule 1.10(a) proposes to change the prohibition from a "knowing" violation of the cited Rules to a violation when the lawyer knows "or reasonably should know" of the violation. This represents a substantive change in the Model Rule but not the rule in practice. The "reasonably should know" standard is clearly the practical law today, as evidenced by the creation of conflicts review procedures in law firms that would not be required if only actual knowledge created the basis for imputation.

2. Imputation of all paragraphs of Rule 1.8

Rule 1.10(a) also has been amended to expand imputation to all paragraphs of Rule 1.8, not simply Rule 1.8(c). This is again a substantive change in expression but not a change in fact. Each of the other paragraphs of Rule 1.8 would be appropriate for imputation in some cases, and this expansion of imputation is then qualified by the change explained in point 3 below.

3. Elimination of 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, lawyers that do represent the client do not have conflicting personal interests, and no other circumstances suggest the conflicted lawyer is likely to influence the others’ work. This is a substantive change in the Rule as written, but it is not intended to reduce the actual protection for clients since the exception only applies if there is no risk that the personal interest conflict will affect others in the firm.

COMMENT:

[1] The amendments proposed in this Comment are designed to further amplify the term "law firm." The text is paraphrased from the Restatement of the Law Governing Lawyers and is intended to provide guidance to lawyers applying this Rule and courts interpreting it. No substantive change is intended from the law as currently applied.

[4] The minor proposed amendments to this Comment are designed to make clear that in the case of former government lawyers, imputation is governed by Rule 1.11. No substantive change is intended.

[5] This is a renumbering of former Comment [6] but is otherwise unchanged. Former Comment [5] explaining the difference in the situation of former government lawyers has been deleted because of its wordiness and lack of specificity. No substantive change is intended.

[6] 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.

[7] This entirely new Comment explains how this Rule applies to persons who are non-lawyers, e.g., secretaries, or who obtained their disqualifying information while a non-lawyer, i.e., 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.

[8] This is a renumbering of former Comment [7] but is otherwise unchanged.

[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.