Me. R. Prof. Cond. 1.10
Me. R. Prof. Cond. 1.10
Advisory Note - April 2018
At the recommendation of the Advisory Committee, Rule 1.10(a) is amended to conform to subsection (a) as currently written in the ABA Model Rules. The purpose of the change is to adopt the screening protocols that apply to potential conflicts within a firm due to a lawyer's former association with another firm. No other changes were recommended, and the Committee specifically recommended retaining for clarity the sentence currently found in Maine Rule of Professional Conduct 1.10(d) but not found in subsection (d) of the Model Rules-"For purposes of Rule 1.10 only, 'firm' does not include government agencies"-and retaining subsection (e), not currently found in the ABA Model Rules.
Although the Supreme Judicial Court has not generally adopted the Comments to the Model Rules or the proposed Rules of Professional Conduct, the current Comments [7]-[10] to ABA Model Rule 1.10 provide helpful guidance on the application of screening provisions under Rule 1.10(a) as proposed:
[7] Rule 1.10(a)(2) . . . removes the imputation otherwise required by Rule 1.10(a), but unlike section (c), it does so without requiring that there be informed consent by the former client. Instead, it requires that the procedures laid out in sections (a)(2)(i)-(iii) be followed. A description of effective screening mechanisms appears in Rule 1.0(k). Lawyers should be aware, however, that, even where screening mechanisms have been adopted, tribunals may consider additional factors in ruling upon motions to disqualify a lawyer from pending litigation.
[8] Paragraph (a)(2)(i) does not prohibit the screened lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly related to the matter in which the lawyer is disqualified.
[9] The notice required by paragraph (a)(2)(ii) generally should include a description of the screened lawyer's prior representation and be given as soon as practicable after the need for screening becomes apparent. It also should include a statement by the screened lawyer and the firm that the client's material confidential information has not been disclosed or used in violation of the Rules. The notice is intended to enable the former client to evaluate and comment upon the effectiveness of the screening procedures.
[10] The certifications required by paragraph (a)(2)(iii) give the former client assurance that the client's material confidential information has not been disclosed or used inappropriately, either prior to timely implementation of a screen or thereafter. If compliance cannot be certified, the certificate must describe the failure to comply.
COMMENT
Definition of "Firm "
[1] For purposes of the Rules of Professional Conduct, the term "firm" denotes lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization. See Rule 1.0(c). Whether two or more lawyers constitute a firm within this definition can depend on the specific facts. See Rule 1.0, Comments [2]-[4]. The term "firm" as used in Rule 1.10, however, does not include governmental entities.
Principles of Imputed Disqualification
[2] The rule of imputed disqualification stated in paragraph (a) gives effect to the principle of loyalty to the client as it applies to lawyers who practice in a law firm. Such situations can be considered from the premise that a firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client, or from the premise that each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom the lawyer is associated. Paragraph (a) operates only among the lawyers currently associated in a firm. When a lawyer moves from one firm to another, the situation is governed by Rules 1.9(b) and 1.10(b).
[3] The rule in paragraph (a) does not prohibit representation where neither questions of client loyalty nor protection of confidential information are presented. Where one lawyer in a firm could not effectively represent a given client because of strong political beliefs, for example, but that lawyer will do no work on the case and the personal beliefs of the lawyer will not materially limit the representation by others in the firm, the firm should not be disqualified. On the other hand, if an opposing party in a case were owned by a lawyer in the law firm, and others in the firm would be materially limited in pursuing the matter because of loyalty to that lawyer, the personal disqualification of the lawyer would be imputed to all others in the firm.
[4] The rule in paragraph (a) also does not prohibit representation by others in the law firm where the person prohibited from involvement in a matter is a nonlawyer, such as a paralegal or legal secretary. Nor does paragraph (a) prohibit representation if the lawyer is prohibited from acting because of events before the person became a lawyer, for example, work that the person did while a law student. Such persons, however, ordinarily must be screened from any personal participation in the matter to avoid communication to others in the firm of confidential information that both the nonlawyers and the firm have a legal duty to protect. See Rules 1.0(k) and 5.3.
[5] Rule 1.10(b) operates to permit a law firm, under certain circumstances, to represent a person with interests directly adverse to those of a client represented by a lawyer who formerly was associated with the firm. The Rule applies regardless of when the formerly associated lawyer represented the client. However, the law firm may not represent a person with interests adverse to those of a present client of the firm, which would violate Rule 1.7. Moreover, the firm may not represent the person where the matter is the same or substantially related to that in which the formerly associated lawyer represented the client and any other lawyer currently in the firm has material information protected by Rules 1.6 and 1.9(c).
[6] Rule 1.10(c) removes imputation with the informed consent of the affected client or former client under the conditions stated in Rule 1.7. The conditions stated in Rule 1.7 require the lawyer to determine that the representation is not prohibited by Rule 1.7(b) and that each affected client or former client has given informed consent to the representation, confirmed in writing. A client's consent may be conditional: for example, the client's consent to waiver of imputation may be conditioned on the law firm screening to assure the affected parties that confidential information known by the personally disqualified lawyer remains protected. See Rule 1.0(k) "Screened" and Comments 8, 9 and 10. In some cases, the risk may be so severe that the conflict may not be cured by client consent. For a discussion of the effectiveness of client waivers of conflicts that might arise in the future, see Rule 1.7, Comment [22]. For a definition of informed consent, see Rule 1.0(e).
[7] Where a lawyer has joined a private firm after having represented the government, imputation is governed by Rule 1.11(b) and (c), not this Rule. Under Rule 1.11(d), where a lawyer represents the government after having served clients in private practice, nongovernmental employment or in another government agency, former-client conflicts are not imputed to government lawyers associated with the individually disqualified lawyer.
[8] Where a lawyer is prohibited from engaging in certain transactions under Rule 1.8, paragraph (k) of that Rule, and not this Rule, determines whether that prohibition also applies to other lawyers associated in a firm with the personally prohibited lawyer.
REPORTER'S NOTES:
Model Rule 1.10 (2002) corresponds, and is equivalent to, M. Bar R. 3.4(b)(3)(i) and M. Bar R. 3.15(a). There are however, some distinctions between the 2002 Rule formulation, and the Maine Bar Rules. The Model Rule (2002) is in accord with Restatement § 123. For the reasons set forth below, the Task Force recommended the adoption of Model Rule 1.10 (2002) as written.
Imputation of conflicts of interest, based upon general principles of agency law, refers to the finding of a conflict-of-interest with respect to an entire firm or group of lawyers when one or more of its members are found to have a conflict-of-interest. This rule is consistent with the idea that a law firm is, in essence, one lawyer for purposes of a lawyer's duties of loyalty and confidentiality. Moreover, the rule imputing conflicts of interest prohibits a lawyer from circumventing conflict-of-interest rules through his or her partners, associates or lawyer/employees.
Model Rule 1.10 's application is limited to "lawyers associated in a firm." However, "firm" is broadly defined, in both the Comments, as well as in Model Rule 1.0(c) (2002) (the "Terminology" section). It not only includes lawyers in law partnerships, professional corporations, legal services organizations and legal departments of corporations, but may include lawyers who share the same physical office space, if they hold themselves out to the public in a way that suggests they are operating as a law firm. This is in accord with the M. Bar R. 3.4(b)(3), which, in essence, defines "firm" to include, partners, associates and affiliated lawyers. For Rule 1.10, however, the term "firm" does not include governmental entities, which limitation is consistent with M. Bar Rule 3.15(a).
Model Rule 1.10 (2002) sets forth the general rules on the imputation of conflicts of interest. The imputation of conflicts of interest in certain specific contexts is further addressed in other Rules. For example, rules with respect to imputation of conflicts in the context of legal services organizations (including law school clinics) are found in Model Rule 6.5 (2002), rules regarding imputation of conflicts in the context of prior service in the judiciary are found in Model Rule 1.12 (2002), and rules addressing imputation of conflicts with respect to current and former government employees are found in Model Rule 1.11 (2002).
Model Rule 1.10(a) (2002) addresses when conflicts of interest of an individual lawyer are imputed to the other members and associates of the lawyer's law firm. An analysis under Model Rule 1.10(a) (2002) must begin with finding of a conflict-of-interest under Model Rules 1.7 or 1.9 (2002). Simply stated, except for conflicts based on the personal interest of a lawyer, if one lawyer is found to have a conflict-of-interest with respect to the representation of two or more clients, then the conflict is imputed to all other lawyers in the lawyer's firm. Because it is understood that conflicts wholly personal to a lawyer are not likely to affect others in the firm, such conflicts of interest generally are not subject to the imputation rule. If, however, a wholly personal conflict presents a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm, then even this type of conflict-of-interests will be imputed to the firm as a whole. Because even a personal conflict would be imputed to other firm members and associates if such a conflict presents a significant risk of materially limiting the representation of the client by the other lawyers in the firm, the Task Force recommended the adoption of Rule 1.10(a).
ABA Model Rule 1.10(b) addresses the extent to which a law firm's imputed conflict-of-interest should continue after a lawyer terminates an association with the firm. It provides that the law firm is prohibited from representing a person with interests materially adverse to those of a former client represented by the former lawyer if (1) the matter is the same or substantially related to that in which the former lawyer represented the former client, and (2) any lawyer in the firm has information protected by Rule 1.6 and 1.9(c) (i.e., a confidence or secret) that is material to the matter. This Rule is a departure from M. Bar R. 3.4(d)(1)(iii), which provides that a law firm has a conflict-of-interest if (1) the subject matter is substantially related, or (2) any lawyer remaining in the firm has protected information. As noted in the Reporter's Notes to Rule 1.9, the 2002 formulation reflects the reality, particularly in large law firms, that remaining lawyers may not be aware that a certain client was represented by a lawyer formerly associated with the firm, much less gained confidential information about that client. Thus, in such circumstances, it makes little sense to impute such knowledge to the former law firm. In smaller firms however, there may be much more firm-wide knowledge of client confidences and secrets. If the remaining lawyers do have confidences and secrets of a former client, however, such lawyers have a duty to keep the confidences and secrets in perpetuity. The Task Force observed that Model Rule 1.10(b) (2002) is also concerned with principles of loyalty and aspires to strike a balance between giving clients freedom to make choices with respect to their counsel, allowing lawyers to have a degree of career mobility, and protecting the material interests of clients.
Both Model Rule 1.10(c) (2002) and the Maine Bar Rules (M. Bar R. 3.4(b)(2) concerning waivers of conflicts of interest with respect to two or more current clients, and M. Bar R. 3.4(d)(1) providing for waivers of conflicts between former clients and current clients) allow for waiver of disqualification by the affected client, under the conditions set forth in Rule 1.7 (setting forth the requirements for informed client consent).
For a discussion of disqualification as a remedy for breach of a conflict-of-interest rule, see Reporter's Notes to Rule 1.9.