Washington Lawyer

Legal Ethics: Information That May Be Appropriately Provided to Check Conflicts When a Lawyer Seeks to Join a New Firm

From Washington Lawyer, September 2002

(The September 2002 “Speaking of Ethics” column discussed Opinion 312. Opinion 312 addresses the issues pertinent to attorney employment mobility (which the Ethics Committee holds the Rules as clearly seeking to “avoid discouraging”) and the checking for conflicts. Rule 1.6 (Confidentiality of Information) and Rule 1.10 (Imputed Disqualification) are central to this opinion. )


…D.C. Rule 1.10(b) provides specific guidance on what creates a conflict of interest with respect to client relationships on which the moving lawyer is no longer participating when the lawyer joins the new firm. That Rule provides that where a lawyer joins a firm, that firm may not represent a client in any matter that is the same as or substantially related to a matter on which the lawyer formerly worked for a client adverse to the present firm’s client, but only where the moving lawyer “has in fact acquired information protected by Rule 1.6 that is material to the matter.”

In several ways, this is a narrower test than the former-client substantial relationship test as imposed by the combination of Rule 1.9 and Rule 1.10(a) in the case of a lawyer who is not changing firms. First, under Rule 1.9, the receipt of confidential information in the earlier representation is presumed if the later matter for a different client is “substantially related.”… By contrast, Rule 1.10(b) turns on whether a lawyer actually received confidential information in the earlier representation that is material to the current matter.

Second, ... when that lawyer moves to firm B the only conflicts that the lawyer carries along from firm A are those caused by client representations in which the lawyer actually participated. Conflicts that applied to the lawyer while in firm A only because of the imputation required by Rule 1.10(a) do not apply when the lawyer is moving to another firm.

Third, as noted in Opinion 273, in order to trigger disqualification of the new firm under Rule 1.10(b), ….disqualification is appropriate only where that lawyer has “acquired information protected by Rule 1.6 that is material to the matter.” Therefore, as Opinion No. 273 says, this provision “leaves open the possibility that a lawyer, such as an associate who had only a peripheral involvement in a matter (as by preparing a research memorandum on a point of law), would not subject his new firm to disqualification under Rule 1.10(b) because that lawyer did not learn any client confidences in the course of the representation.”

…Rule 1.6 …(s)ubsections (a) and (f) require lawyers not to reveal “confidences” and “secrets” of a client or former client. …

Rule 1.6(b) …defines “secret” as “other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing, or would likely be detrimental, to the client.” A “secret” may be information gained from another source than the client and may be shared by others without losing its status as a secret. Comment [6] to Rule 1.6; see our Opinions No. 83 and 246. …

… (T)he critical point in identifying secrets is not whether the information came from the client or who else knows it, but whether it was “gained from the professional relationship” and (1) the client has asked that it be held inviolate or (2) revelation of it would be embarrassing or likely detrimental to the client. ...

… The lawyer must make the judgment of whether particular information is a secret or not (see our Opinion No. 128). We caution that because such decisions are made in the almost entirely private context of a lawyer seeking employment in another firm, the lawyer must err on the side of protecting information where any doubt exists. …

Moreover, it is typically necessary to reveal only the most general information about a representation in order to determine, positively or negatively, whether a representation may cause a conflict. …

There are, of course, many instances in which the facts surrounding a representation (such as that client X is contemplating a takeover of another business or has consulted a divorce lawyer or a criminal defense lawyer) may be extremely sensitive and so fraught with the possibility of injury or embarrassment to that client that absent a waiver that information is not subject to disclosure even for the purpose of checking conflicts. See D.C. Rule 1.7, comment [19]. There is no specific exemption to the confidentiality rules in Rule 1.6 or elsewhere that permits a lawyer to reveal confidential information for the purpose of checking or seeking waiver of a conflict. This does not, mean, however, that there are no techniques that may in many cases allow conflicts to be adequately checked while at the same time assuring confidentiality to the full measure required by the Rules… Some rough guidelines or suggestions follow…

  • As noted above, as a general rule it is merely necessary to compare the client name and the general subject matter of the representation. This information is often, though not always, neither privileged nor a secret.
  • In some cases, identifying a particular issue or subject matter without identifying the client name may be sufficient to determine the lack of any conflict (see Opinion No. 265 on positional conflicts).
  • If the subject matter but not the client name is sensitive, it will often be possible to avoid the sensitive areas if the moving lawyer mentions only the client name and asks the firm if that causes a problem. …
  • If the identity of the client creates a problem (for example because the moving lawyer’s practice specialty—for example, criminal law—would in combination with the client name reveal too much), it may be possible for the moving lawyer to name, instead of the client, those persons or entities to whom or which that client is adverse. If the firm does not represent them, there may well be no problem.
  • At least as a first stage in an inquiry, it may be possible to avoid revealing confidences and secrets by providing a list of names to the firm without revealing which are clients and which adverse parties, perhaps also presenting the names in alphabetical or other order so as not to suggest associations. Depending on the substance of the firm’s reaction or lack thereof to the names on the list, it may well be possible to discern that there is no problem without revealing additional information.

Adopted: April 2002