Firm Must Leave Case if New Associate Worked on Other Side While in Law School

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Sept. 15 — A law firm must stop representing a litigation client if it hires a lawyer who formerly worked on the case as a law clerk at the firm representing the opposing party, the Texas bar's ethics committee advised in August.

Screening the tainted lawyer to prevent the sharing of any confidential information he learned in his prior employment won't enable the firm to continue representing the client, according to the opinion.

Not a Lawyer Then …

The committee noted that when a lawyer represents a client in a suit and then joins a firm representing the opponent, Rule 1.09 of the Texas Disciplinary Rules of Professional Conduct (former-client conflicts) prohibits the firm from continuing the representation.

In that situation, the panel said, it is conclusively presumed both that the lawyer learned confidential information while representing the client at the former firm and that the lawyer will share the client's confidential information with the lawyers in his new firm.

But Rule 1.09 does not apply here, the committee said, because it addresses situations in which a lawyer personally represented a client in a matter, and the individual in question was not yet a lawyer when he worked on the case in his former job.

… but No Longer a Staff Member

A different analysis applies where a nonlawyer staff member changes firms.

If a staff member at a firm works on a case and then moves to the law firm representing the other side, there is a conclusive presumption that the client's confidential information was imparted to the staff member in the earlier job, the panel said.

There is also a presumption that the staff member will share the client's confidential information at the new firm—but that presumption is not conclusive and can be overcome by screening procedures, the committee said.

However, the situation here does not fit that scenario, the panel said, because the individual in question is now working as a lawyer, not a law clerk, at the firm representing the other side in the case.

General Conflicts Rule

The committee decided that the conflict presented here should be analyzed under Rule 1.06, which is Texas's distinctive version of Model Rule 1.7 on current-client conflicts.

The opinion focuses on Rule 1.06(b)(2), which prohibits a representation that is limited by the lawyer's responsibilities to a third person or by the lawyer's own interests.

Rule 1.06(b)(2) would be violated if the new associate were to personally represent his new firm's client in the litigation, the committee said, because the representation would be adversely limited in two ways:

• The lawyer's duty to maintain the confidentiality of information he acquired from his former employer's client would prevent him from using all information at his disposal to further the interests of his new employer's client.

• The lawyer's own interest in avoiding claims for misuse of the confidential information entrusted to him in his earlier work as a law clerk would hamper his zealous representation of his new employer's client.

Consent, Screening Won't Help

Client consent could not cure this conflict, the committee said, because the lawyer could not reasonably believe that his representation of the client at his new firm wouldn't be materially affected by his obligations to his previous employer and its client.

Nor can the lawyer's new firm avoid imputed disqualification by screening the lawyer from participation in the matter, the committee said. Under Rule 1.06(f), it said, all lawyers in a firm are prohibited from representing a client if one of them would not be permitted to represent the client—even if that lawyer has no actual involvement in the litigation.

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