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Difficult questions arise with regard to imputed disqualification. As a general matter, where attorneys are associated in a firm none of them may represent a client if any one of them, practicing alone, would be prohibited from doing so by the conflict rules. M.R. 1.10(a). Where lawyers do not move between firms, this rule is not usually difficult to apply except with regard to determining whether the affiliation requirement has been met. See Restatement, § 203. That requirement has been held by the ABA in Formal Opinion 90-357 (1990) to apply to lawyers who are "of counsel" to a firm. Thus, for purposes of imputed disqualification, if two or more firms share an "of counsel" attorney they are effectively considered to be a single firm in determining whether disqualification is required. Similarly, where a firm is "of counsel" to another firm, this would "entail the complete reciprocal attribution of disqualifications of all lawyers in each firm." Id. Where lawyers change firms, the conflicts are more difficult to resolve.
The question of "imputed" knowledge, and therefore "imputed" disqualification, exists at both ends of the representation. The issue arises because of the presumption of shared confidences. It has long been accepted that attorneys in the same firm can, and often do, share information. One of the advantages of practicing in a firm setting is the ability to bounce ideas off others in the firm, and to obtain expertise in a variety of areas within the firm. This requires consultation among attorneys in the firm. In addition, in many firms, there is unrestricted access to client files, and in some firms, regular meetings are held at which progress on cases is discussed. Thus, in many cases, it is reasonable to presume that, where an attorney in a firm represents a client, the attorney’s partners and associates have access to, and in fact have, protected information about that client.
The issue also arises where an attorney works on a client’s case within a firm, but may have very little to do with the case. This comes up most often involving young associates in large firms. It is not uncommon that the attorney will be given few, if any facts, and will be asked to research a discrete issue. The attorney may have no access to the client file and little opportunity to discuss the case with others. Is it reasonable to presume that this attorney has confidential information of the client that would be at risk if the attorney were on the other side?
These questions are at the core of the courts’ attempts to resolve the issue of imputed disqualification. Under what circumstances should the courts presume that an attorney who did not actually represent a client has protected information? Under what circumstances should the courts allow an attorney who actually worked on a case to deny that he or she has such information? While these matters are difficult enough, they are further complicated by the fact that it may not be the lawyer him or herself, but rather the lawyer’s new firm, that is undertaking the subsequent representation. How, if at all, should this alter the analysis?
Where disqualification is sought against a lawyer whose firm previously represented a client who the lawyer now represents adversely to, the courts have generally used two levels of presumptions to determine whether disqualification is required. The first presumption is that the attorney who represented the client in fact had confidential information that (if the matters are substantially related, and the subsequent representation is materially adverse) could be used against the client. This presumption is routinely viewed as irrebuttable. But where the attorney whose disqualification is sought did not actually work on the matter, most court will apply a rebuttable presumption on the issue of whether that attorney has protected information. If the attorney can rebut that presumption, by showing, for example, that he or she had no access to files and spoke to no one about the case, disqualification will not be ordered unless the other side comes back with information to show the contrary. In that case, the courts, not wanting a "swearing contest," will generally allow the presumption to carry the day and will disqualify the attorney.
Where, however, the attorney actually worked on the matter, most courts will not allow the presumption of access to confidential information to be rebutted. In such situations, disqualification will be mandated. Some courts, however, are concerned about the limited access problem. In order to facilitate mobility among lawyers and choice of counsel by clients, these courts will allow rebuttal where the attorney was only "peripherally involved" in the previous matter. This issue was addressed in another portion of the Chrispens decision as follows:
This idea [of limited representation] is best reflected in the case of Silver Chrysler Plymouth Inc. v. Chrysler Mot. Corp., 518 F.2d 751, 756-57 (2d Cir.1975), wherein the court stated: "But there is a reason to differentiate for disqualification purposes between lawyers who become heavily involved in the facts of a particular matter and those who enter briefly on the periphery.... Under the latter circumstances the attorney's role cannot be considered 'representation.' "
In order for the automatic disqualification to take place under MRPC 1.9(a), there must be a showing that the attorney whose disqualification is sought actually represented the former client, not just that his or her law firm did so. This allows attorneys on the periphery of issues to avoid being cast as having represented a client when, in fact, they merely belonged to the firm. This also corresponds to the Comment to MRPC 1.9, which states: "The lawyer's involvement in the matter can also be a question of degree."
Although the court in Silver Chrysler refused to draw a controlling distinction between partners and associates in addressing this question, it seems clear that this doctrine is designed to protect those with limited access to information, and they are most likely to be younger associates. For the most part, it is only where the scope and degree of representation by their nature rebut the presumption of shared confidences that the Silver Chrysler peripheral involvement approach has been accepted.
While the use of these presumptions to resolve issues of disqualifications has been generally accepted for some time, the advent of the Model Rules has begun to cause a change in focus. Under the Model Rules, a lawyer should not represent a person in the same or a substantially related matter in which that lawyer's prior firm previously represented a client whose interests are materially adverse and about whom the lawyer has acquired protected information. M.R. 1.9(b). The disciplinary rule allows for discipline only where the lawyer in fact possesses such information, although proof of such fact may be aided by "inferences, deductions or working presumptions." Comment ¶ 6.
Recently, courts in a number of jurisdictions that have adopted the Model Rules have begun to use the language of the rules, rather than the presumptions, to resolve disqualification issues. Thus, in Parker v. Volkswagenwerk Aktiengesellschaft, 781 P.2d 1099 (Kan. 1989), the court focussed not on whether it should presume access to information, but rather on whether there had been a showing that the attorney "had knowledge of material and confidential information." See also Graham v. Wyeth Labs, 906 F.2d 1419 (10th Cir. 1990) (applying Kansas law). Missouri appears to have followed this approach in In re Marriage of Carter, 862 S.W.2d 461 (Mo. App. 1993). Does this provide sufficient protection to the former client’s information? Does it adequately address appearances? Is use of the Model Rules appropriate in this context? Why or why not?
The problem is further complicated by the issue of screening. If it is not the attorney, but the attorney’s new firm, that is currently representing adverse to the attorney’s former client, can the attorney be screened from the current representation so that the firm can continue in the representation? The majority view, at least in the state courts, does not allow screening to prevent disqualification if the substantial relationship test has been met. See, e.g., Parker, 781 P.2d at 1106-07 (Model Rules "reject. . . any thought that the 'taint' of the incoming lawyer can be cured by screening. . . "); JK & Susie L. Wadley Research v. Morris, 776 S.W.2d 271, 284 (Ten. Ct. App. 1989); Weglarz v. Bruck, 128 Ill. App. 3d 1, 470 N.E.2d 21, 24 (1984) (screening only permitted where attorney had no confidential information). These courts believe that the continued risk of disclosure, coupled with the appearance of impropriety, outweigh interests in mobility and the right to counsel of choice.
A growing minority of courts has begun to recognize screening as a legitimate means of curing conflicts of this type based on the new realities of law practice which require a balancing of interests. Manning v. Waring, Cox, James, Sklar & Allen, 849 F.2d 222, 225 (6th Cir. 1988); see Schiessle v. Stephens, 717 F.2d 417, 421 (7th Cir. 1983); EZ Painter, supra. This issue caused heated discussion during debate on the Restatement. The current version of the Restatement would permit representation in the "former client" context "when there is no reasonably apparent risk that confidential information of the former client will be used with material adverse effect on the former client." Such risk will not be found where any confidential information "is unlikely to be significant in the subsequent matter" and the lawyer having such information "is subject to screening measures adequate to eliminate involvement by that lawyer in the representation." The Restatement also requires "timely and adequate notice of the screening" to all affected clients. Restatement, § 204(2). Is this an adequate resolution of the issue? Is it likely to be effective?
Where screening is permitted, it generally requires that the screened attorney be denied access to files, not discuss the matter with others in the firm, and not share in profits or fees derived from the representation. See Restatement, Comment to § 204; ABA/BNA Lawyer’s Manual, 51:2004-2005, 2010-2013.
Note that, in the prospective client context, the Restatement would permit screening even where the screened attorney actually had access to information that could be significantly harmful to the prospective client. Restatement § 27. Does this satisfactorily resolve the issues where prospective clients are concerned?
Conflict of interest problems can arise with regard to non-lawyer personnel within a law firm. In an Informal Opinion issued in June, 1988, the ABA addressed whether a law firm must be disqualified where a paralegal, who worked on a case with a prior firm, joined the firm representing the opposing party. The Committee noted that, under M.R. 5.3, the firm has an obligation to protect information that the paralegal may possess. This information can be adequately protected by using screening procedures that ensure the employee does not discuss the case with lawyers in the firm and does not work on the matter in any way. Disqualification of the firm, however, is not required.
This Opinion reflects the prevailing view in the courts, see, e.g. Phoenix Founders, Inc. v. Marshall, 887 S.W.2d 831 (Tex. 1994), although there are courts that see no reason for making a distinction between lawyers and non-lawyers in this situation. See Esquire Care Inc. v. Maguire, 532 So. 2d 740 (Fla. App. 1988) and cases discussed therein. Where lawyers and non-lawyer personnel are treated differently for these purposes, how should law students be treated?
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