Opinion 2130

I. Facts

A law firm wishes to hire a lawyer. The lawyer would be designated as “part time” or “of counsel.” The firm is concerned that RPC 1.10 (the imputed disqualification rule) would prohibit it from representing clients if that representation was in conflict with representation the part time or of counsel lawyer undertook for clients outside of that lawyer’s work at the law firm. If it would avoid the prohibition in the rule, the law firm would be willing to take measures including limiting the percentage of time that lawyer could devote to outside work, restricting that lawyer’s access to office files, and having that lawyer work off-site without access to the firms general filing or email systems.

The inquiring lawyer is aware of the position announced in Informal Opinion 1243 that part-time work by a lawyer for a law firm renders the lawyer and the firm “associated” for purposes of RPC 1.10(a), but cites to the committee the case of Homestead Video, Inc v. Incorporated Village of Valley Stream, 409 F3d 127 (2d Cir, 2005) in which the court denied the plaintiff’s motion to disqualify the defendant’s attorneys under the facts of that case.

II. Question

Does the imputed disqualification rule (RPC 1.10) prohibit a law firm from representing a client when that representation would conflict with the representation of another client undertaken by a lawyer (i) who works part time with the law firm or (ii) who is of counsel with that law firm, when the part time or of counsel lawyer’s conflicting representation was undertaken outside that lawyer’s work for the law firm?

III. Short Answer

Yes, because the part time or of counsel lawyer is “associated” with the law firm, RPC 1.10(a) prohibits the firm from representation of a client when that representation would conflict with the representation undertaken by the part time or of counsel lawyer even when that lawyer represents that client outside of the lawyer’s work with the law firm.

IV. Analysis

Current provisions of RPC 1.10(a) provide that:

while lawyers are associated in a law firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by rule 1.7, 1.8(c), 1.9. or 2.2.

The rule that takes effect on September 1, 2006, provides similarly that:

while lawyers are associated in a law firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by rule 1.7, or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.

The inquiry assumes that conflicts would exist between the clients of the firm and the outside clients of the part time or of counsel lawyer. The question is whether that lawyer and the firm are “associated” for the purpose of the rule.

Informal Opinion 1243 stated that a lawyer working part-time on a contract basis for a law firm is “associated” with the law firm as that term is used in RPC 1.10(a). The conclusion of that opinion is confirmed in the more recent Informal Opinion 1740 that found that a lawyer who was of counsel in two different firms was “associated” with both firms for purpose of the imputed disqualification rule.

The new RPC 1.10(a) does not alter the validity of Informal Opinion 1243. References in the current rule to 1.8(c) and 2.2 are stricken, but the conflicts to current and former clients defined in 1.7 and 1.9 remain and it appears that the law firm anticipates that these types of conflicts would be involved. The added clause involving a conflict based on a lawyer’s personal interest does not bear on this question. That clause was added for circumstances where a lawyer in the firm has strong political or other such beliefs that prevent that lawyer from representing the client. See RPC 1.10, Comment 3.

In Homestead Video, Inc v. Incorporated Village of Valley Stream, the Second Circuit did not disqualify the defendant’s law firm from representing its client in that case. In that case a semi-retired lawyer in his mid-70s worked a few hours with the defendant’s law firm with several clients he had represented in the past and was in the process of turning over to be represented by the law firm. When he was in solo practice he had represented the plaintiff’s company in matters unrelated to the matter with the Village of Valley Stream. The court declined to disqualify the law firm from representation of the defendant.

The Homestead Video does not provide grounds to change to alter the conclusion in Informal Opinion 1243. First, it was important to the court in that case that it was successive representation that was involved. The semi-retired lawyer had represented the plaintiff in the past but was not currently doing so. The law firm in this inquiry appears to be hoping to hire the part time or of counsel lawyer who would be actively representing conflicting clients. Second, the court in Homestead Video made it clear that its ruling was not based upon a disciplinary rule. The court said:

Although our decisions on disqualification motions often benefit from guidance offered by the American Bar Association and state disciplinary rules (cases cited), such rules merely provide general guidance and not every violation of a disciplinary rule will necessarily lead to disqualification (case cited).

Id at 132. The court in Homestead Video was not answering the question posed by the inquiry. The authority of Informal Opinion 1243 remains the best authority on the question presented.

The law firm proposes a number of measures designed to assure that where conflicts exist information obtained in representing its clients not be accessible by the part time or of counsel lawyer and that would prevent the law firm from accessing that information obtained in the part time or of counsel lawyer’s conflicting but separate client representations. While useful in avoiding improper cross-disclosure of information, these measures do not undo the fact that the part-time or of counsel lawyer would be “associated” with the law firm. The primary purpose of the imputed disqualification rule is to prevent the cross-flow of confidential information. The measures proposed by the law firm may well be sufficient to prevent that cross flow. However, the word “associated,” by its plain meaning, applies to the circumstances proposed by the law firm.