Tenn. R. Sup. Ct. 1.10
Tenn. R. Sup. Ct. 1.10
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 in which lawyers may practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization. See RPC 1.0(c) (defining "Firm" or "Law Firm"). Whether two or more lawyers constitute a firm within this definition can depend on the specific facts. See RPC 1.0, Comments [2] - [4].
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 RPCs 1.9(b) and 1.10(b), (c) and (d).
[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] [Intentionally omitted]
Lawyers Moving Between Firms
[5] When a lawyer who is associated in a firm leaves the firm, the question of whether a lawyer should undertake representation adverse to clients of the former firm is more complicated. There are several competing considerations. First, the client previously represented by the former firm must be reasonably assured that the principle of loyalty to the client is not compromised and that confidential information related to the representation will not be used to the client's disadvantage. Second, the rule should not be cast so broadly as to preclude other persons from having reasonable choice of legal counsel. Third, the rule should not unreasonably hamper lawyers from forming new associations and taking on new clients after having left a previous association. In this connection, it should be recognized that today many lawyers practice in firms, that many lawyers to some degree limit their practice to one field or another, and that many move from one association to another several times in their careers. If the concept of imputation were applied with unqualified rigor, the result would be radical curtailment of the opportunity of lawyers to move from one practice setting to another and of the opportunity of clients to change counsel.
[6] Paragraphs (a) and (b) govern the vicarious disqualification of a law firm in the situation in which a lawyer leaves the firm and continues or undertakes the representation of a client previously represented by the firm, the firm is no longer representing the client, and lawyers who have remained in the firm are asked to undertake a representation materially adverse to the firm's former client. If the new matter is substantially related to a matter in which the firm previously represented the client, the firm, absent the former client's consent, will be precluded by paragraph (a) from undertaking the representation if any lawyer remaining in the firm would be precluded by RPC 1.9(a) from doing so because the lawyer had participated in the client's prior representation. Alternatively, paragraph (b) precludes the firm from undertaking the representation if any lawyer remaining in the firm has information protected by RPCs 1.6 and 1.9(c) that is material to the matter. If, on the other hand, no remaining lawyer participated in the client's representation or possessed confidential information, the firm is permitted to undertake the representation even though it is materially adverse to the former client in a substantially related matter.
[7] Paragraph (c) addresses the situation in which a lawyer leaves one law firm and joins another firm that is representing a client with interests materially adverse to a client of the new lawyer's former firm. The new lawyer may be personally disqualified from participating in the representation of some of the new firm's clients because of his or her prior representation of, or acquisition of confidential information about, clients of his or her former law firm. With one limited exception addressed in paragraph (d), this personal disqualification will not be imputed to other lawyers in the personally disqualified lawyer's new firm if they act reasonably to protect the confidentiality interests of the person being represented by the personally disqualified lawyer's former firm.
[8] Paragraph (c) sets forth the measures that must be taken in order to protect the confidentiality interests of the client being represented by the personally disqualified lawyer's former firm. Requirements for screening procedures are stated in RPC 1.0(k) and RPC 1.0, Comments [8]-[10]. Whether a firm's screening procedures are effective to prevent the flow of information about the matter between the personally disqualified lawyer and the other lawyers in the firm is a question of fact. Factors to be considered include a written affirmation by the personally disqualified lawyer and the lawyers and firm personnel handling the matter in question that they are aware of and will abide by the screening procedures implemented by the firm; the structural organization of the law firm or office; the likelihood of contact between the personally disqualified lawyer and the lawyers handling the matter in question; and the existence of firm rules and a filing system that prevents unauthorized access to files with respect to the matter in question. The question to be asked in each case is whether the screening mechanism effectively reduces to an acceptable level the potential for misuse of information related to the representation of the personally disqualified lawyer's former client. The writing required by paragraph (c)(4) 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. This writing is intended to enable the former client to evaluate and comment upon the effectiveness of the screening procedures.
[9] The "appearance of impropriety" standard existing under the Code of Professional Responsibility has not been retained in these rules. Paragraph (d), however, restates the rule of law established by Clinard v. Blackwood, 46 S.W.3d 177 (Tenn. 2001). In that case, the Tennessee Supreme Court held that screening mechanisms were generally not effective to avoid imputed disqualification of a law firm when a lawyer was perceived as "switching teams" in the course of pending litigation. Although the holding of Clinard was grounded in the prior standard from the Code of Professional Responsibility guarding against the "appearance of impropriety," the Court also noted that its holding was necessary to further lawyerclient communications and to avoid the impression that the judiciary favors considerations of lawyer mobility over those of client confidentiality. Consequently, the Clinard rule continues under the present Rules. As was the case in Clinard , this narrow exception to paragraph (c) will vicariously disqualify the law firm only when the interests of a client of that firm are presently and directly adverse with those of a person who was formerly represented in substantial part by the disqualified lawyer.
[10] A client may give informed consent to a representation proscribed by this rule under the same conditions required for informed consent of a representation proscribed by RPC 1.7. As with RPC 1.7, prior to seeking a client's informed consent, the lawyer must reasonably believe that the representation can be undertaken without material adverse effect. For a discussion of the effectiveness of client waivers of conflicts that might arise in the future, see RPC 1.7, Comment [22]. For a definition of informed consent, see RPC 1.0(e).
[10a] The requirements set forth in this rule include law clerks, paralegals, secretaries, and other staff employed by a firm, with due regard to their levels of responsibility in the matter.
[11] Where a lawyer has joined a private firm after having represented the government, imputation is governed by RPC 1.11(b) and (c), not this Rule. Under RPC 1.11(d), where a lawyer represents the government after having served clients in private practice, nongovernmental employment, or in another government agency, imputation is governed by RPC 1.11(c)(1). The individual lawyer involved is bound by the Rules generally, including RPCs 1.6, 1.7, and 1.9(c).
[12] Where a lawyer is prohibited from engaging in certain transactions under RPC 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.
[13] The disqualification of lawyers associated in a firm with a former judge or arbitrator is governed by RPC 1.12. The disqualification of lawyers associated in a firm with a lawyer disqualified from a matter as a result of obligations under RPC 1.18 flowing from a consultation with a prospective client is governed by RPC 1.18(d).
DEFINITIONAL CROSS-REFERENCES "Firm" and "Law Firm" See RPC 1.0(c) "Material" and "materially" See RPC 1.0(o) "Reasonably" See RPC 1.0(h) "Screening" See RPC 1.0(k) "Substantially" See RPC 1.0(l) "Writing" See RPC 1.0(n)