Partner? Associate? Of Counsel? Does it Matter for Conflict Purposes?

Pursuant to ABA Model Rule 1.10, a single attorney’s conflict of interest may be imputed to the entire law firm. The Rule provides that while lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so under the Rules.  It is not uncommon for lawyers to have different associations with a particular firm—for example the term “of counsel” is often used to designate a role different from the traditional partner or associate positions.   This may beg the question what level of involvement must an attorney have in order to be “associated with” a particular firm for conflicts purposes.  A recent case out of the U.S. District Court of New Jersey involving a “seconded” attorney addressed just this issue.

In the underlying suit, Company – a defendant – claimed that one of its former in-house corporate attorneys (“Attorney”) was now employed by the law firm (“Firm”) representing the plaintiff. Company demanded that Law Firm withdraw from the case due to former client conflicts under the Rules of Professional Conduct. The Law Firm declined and a motion to disqualify ensued.

According to the opinion, Attorney previously worked in-house for Company and handled similar issues to those before the court. Attorney eventually left Company and obtained a job with Law Firm.  As soon as Attorney was hired by Law Firm she was “seconded” to one of the Firm’s clients.  “Secondment” refers to the hiring of a lawyer from a law firm on a full-time, priced-fixed basis for a set period of time.  Attorney executed an agreement with the Law Firm, which provided that she shall not continue to work on behalf of the Firm during the term of her secondment.

The case was initially heard before a magistrate judge who determined that Attorney was otherwise conflicted pursuant to Rule 1.9 pertaining to duties to former clients but that Attorney was not “associated with” the Firm.  The judge concluded that since Attorney was seconded to a client she did not have access to confidential information, and there was also no evidence of a risk of improper disclosure.  Therefore, the Attorney’s conflict could not be imputed to Firm.   Significantly though, the judge did not address whether Law Firm had, or held out itself as having, a general and continuing relationship with Attorney.

On appeal Company argued that Attorney had a continuing relationship with the Law Firm, so her conflict should be imputed.   The district court first determined that Attorney’s was non-temporary.  The court then found that the Law Firm repeatedly held out Attorney as an “associate of the firm, with no caveats or provisos concerning her secondment or transient status.”  She was listed as an “Associate” on the Firm’s website and was designated to a certain practice group within the Firm.  The Firm had also included the Attorney’s biography when pitching work to other potential clients and reported her as an associate to outside organizations.

As a result the court concluded that the Law Firm could not “now conveniently eschew that relationship for the purposes of conflicts analysis.”  The court disqualified the Firm based upon the imputed conflict.

The case serves as a good reminder for firms that they need to consider all attorneys associated with the firm when conducting a conflict check prior to accepting a new matter.  Firms need to be mindful of what level of association attorneys in different roles have with the firm and whether they need to be considered in the conflicts analysis.  When in doubt, its best to address the potential conflict head on and notify the appropriate parties at the outset to avoid any issues down the road.

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