Alabama Rules of Professional Conduct
Client-Lawyer Relationship
Rule 1.10.
Imputed Disqualification: General Rule.
(a) While lawyers are associated in a firm, none of them shall knowingly
represent a client when any of them, practicing alone, would be prohibited from doing so
by Rules 1.7, 1.8(a)-1.8(k), 1.9, or 2.2.
(b) When a lawyer becomes associated with a firm, the firm may not knowingly
represent a person in the same or a substantially related matter in which that lawyer, or
a firm with which the lawyer was associated, had previously represented a client whose
interests are materially adverse to that person and about whom the lawyer had acquired
information protected by Rules 1.6 and 1.9(b) that is material to the matter.
(c) When a lawyer has terminated an association with a firm, the firm is not
prohibited from thereafter representing a person with interests materially adverse to
those of a client represented by the formerly associated lawyer, unless:
(1) The matter is the same or substantially related to that in which the
formerly associated lawyer represented the client; and
(2) Any lawyer remaining in the firm has information protected by Rules
1.6 and 1.9(b) that is material to the matter.
(d) A disqualification prescribed by this rule may be waived by the affected client
under the conditions stated in Rule 1.7.
[Amended eff. 6-23-2008.]
Comment (As Amended Effective June 23, 2008)
Definition of “Firm”
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. Whether
two or more lawyers constitute a firm within this definition can depend on the specific
facts. For example, two practitioners who share office space and occasionally
consult or assist each other ordinarily would not be regarded as constituting a firm.
However, if they present themselves to the public in a way suggesting that they are
a firm or conduct themselves as a firm, they should be regarded as a firm for
purposes of the Rules. The terms of any formal agreement between associated
lawyers are relevant in determining whether they are a firm, as is the fact that they
have mutual access to confidential information concerning the clients they serve.
Furthermore, it is relevant in doubtful cases to consider the underlying purpose of
the rule that is involved. A group of lawyers could be regarded as a firm for purposes
of the rule that the same lawyer should not represent opposing parties in litigation,
while it might not be so regarded for purposes of the rule that information acquired
by one lawyer is attributed to another.
With respect to the law department of an organization, there is ordinarily no
question that the members of the department constitute a firm within the meaning of
the Rules of Professional Conduct. However, there can be uncertainty as to the
identity of the client. For example, it may not be clear whether the law department of
a corporation represents a subsidiary or an affiliated corporation, as well as the
corporation by which the members of the department are directly employed. A
similar question can arise concerning an unincorporated association and its local
affiliates.
Similar questions can also arise with respect to lawyers in legal aid. Lawyers
employed in the same unit of a legal services organization constitute a firm, but not
necessarily those employed in separate units. As in the case of independent
practitioners, whether the lawyers should be treated as associated with each other
can depend on the particular rule that is involved, and on the specific facts of the
situation.
Where a lawyer has joined a private firm after having represented the
government, the situation is governed by Rule 1.11(a) and (b); where a lawyer
represents the government after having served private clients, the situation is
governed by Rule 1.11(c)(1). The individual lawyer involved is bound by the Rules
generally, including Rules 1.6, 1.7, and 1.9.
Different provisions are thus made for movement of a lawyer from one private
firm to another and for movement of a lawyer between a private firm and the
government. The government is entitled to protection of its client's confidences, and
therefore, to the protections provided in Rules 1.6, 1.9, and 1.11. However, if the
more extensive disqualification in Rule 1.10 were applied to former government
lawyers, the potential effect on the government would be unduly burdensome. The
government deals with all private citizens and organizations, and thus has a much
wider circle of adverse legal interests than does any private law firm. In these
circumstances, the government's recruitment of lawyers would be seriously impaired
if Rule 1.10 were applied to the government. On balance, therefore, the government
is better served in the long run by the protections stated in Rule 1.11.
Principles of Imputed Disqualification
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 paragraphs (b) and (c).
Lawyers Moving Between Firms
When lawyers have been associated in a firm but then end their association,
however, the problem is more complicated. The fiction that the law firm is the same
as a single lawyer is no longer wholly realistic. There are several competing
considerations. First, the client previously represented must be reasonably assured
that the principle of loyalty to the client is not compromised. Second, the rule of
disqualification should not be so broadly cast as to preclude other persons from
having reasonable choice of legal counsel. Third, the rule of disqualification 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 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 imputed disqualification were
defined 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.
Reconciliation of these competing principles in the past has been attempted
under two rubrics. One approach has been to seek per se rules of disqualification.
For example, it has been held that a partner in a law firm is conclusively presumed
to have access to all confidences concerning all clients of the firm. Under this
analysis, if a lawyer has been a partner in one law firm and then becomes a partner
in another law firm, there is a presumption that all confidences known by a partner in
the first firm are known to all partners in the second firm. This presumption might
properly be applied in some circumstances, especially where the client has been
extensively represented, but may be unrealistic where the client was represented
only for limited purposes. Furthermore, such a rigid rule exaggerates the difference
between a partner and an associate in modern law firms.
The other rubric formerly used for dealing with vicarious disqualification is the
appearance of impropriety proscribed in Canon 9 of the ABA former Code of
Professional Responsibility. This rubric has a twofold problem. First, the appearance
of impropriety can be taken to include any new client-lawyer relationship that might
make a former client feel anxious. If that meaning were adopted, disqualification
would become little more than a question of subjective judgment by the former client.
Second, since “impropriety” is undefined, the term “appearance of impropriety” is
question-begging. It therefore has to be recognized that the problem of imputed
disqualification cannot be properly resolved either by simple analogy to a lawyer
practicing alone or by the very general concept of appearance of impropriety.
A rule based on a functional analysis is more appropriate for determining the
question of vicarious disqualification. Two functions are involved: preserving
confidentiality and avoiding positions adverse to a client.
Confidentiality
Preserving confidentiality is a question of access to information. Access to
information, in turn, is essentially a question of fact in particular circumstances,
aided by inferences, deductions or working presumptions that reasonably may be
made about the way in which lawyers work together. A lawyer may have general
access to files of all clients of a law firm and may regularly participate in discussions
of their affairs; it should be inferred that such a lawyer in fact is privy to all
information about all the firm's clients. In contrast, another lawyer may have access
to the files of only a limited number of clients and participate in discussion of the
affairs of no other clients; in the absence of information to the contrary, it should be
inferred that such a lawyer in fact is privy to information about the clients actually
served but not those of other clients.
Application of paragraphs (b) and (c) depends on a situation's particular facts.
In any such inquiry, the burden of proof should rest upon the firm whose
disqualification is sought.
Paragraphs (b) and (c) operate to disqualify the firm only when the lawyer
involved has actual knowledge of information protected by Rules 1.6 and 1.9(b).
Thus, if a lawyer while with one firm acquired no knowledge of information relating to
a particular client of the firm, and that lawyer later joined another firm, neither the
lawyer individually nor the second firm is disqualified from representing another
client in the same or a related matter even though the interests of the two clients
conflict.
Independent of the question of disqualification of a firm, a lawyer changing
professional association has a continuing duty to preserve confidentiality of
information about a client formerly represented. See Rules 1.6 and 1.9.
Adverse Positions
The second aspect of loyalty to client is the lawyer's obligation to decline
subsequent representations involving positions adverse to a former client arising in
substantially related matters. This obligation requires abstention from adverse
representation by the individual lawyer involved, but does not properly entail
abstention of other lawyers through imputed disqualification. Hence, this aspect of
the problem is governed by Rule 1.9(a). Thus, if a lawyer left one firm for another,
the new affiliation would not preclude the firms involved from continuing to represent
clients with adverse interests in the same or related matters, so long as the
conditions of paragraphs (b) and (c) concerning confidentiality have been met.
Comparison with Former Alabama Code of Professional Responsibility
DR 5-105(D) provided that “[i]f a lawyer is required to decline or to withdraw
from employment under DR 5-105, no partner or associate of his or his firm, may
accept or continue such employment.”
Note from the reporter of decisions: The order amending Rule 1.8, the
Comment to Rule 1.8, Rule 1.10(a), the Comment to Rule 1.10, Rule 1.12, Rule 1.14,
the Comment to Rule 1.14, the Comment to Rule 3.2, Rule 3.6, the Comment to Rule
3.7, Rule 3.9, and Rule 4.4 is published in that volume of Alabama Reporter that
contains Alabama cases from 983 So.2d.
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