When Lawyers Change Firms, Disclosure of Limited Prior Client Data is Essential to Conflict-of-Interest Analysis: ABA Ethics Opinion

CHICAGO, Nov. 10, 2009—When a lawyer changes law firms, she and her new firm must conduct a conflict-of-interest review.  To ensure there are no conflicts, the lawyer generally must provide the new firm with names of past clients and identify in general terms the legal issues on which she has worked.  Most times, that does not violate a client confidence.

But when it would, the lawyer and new firm must find an alternative way to detect and resolve conflicts-of-interest issues, or she may have to forego the new relationship, according to an ethics opinion just released by the American Bar Association Standing Committee on Ethics and Professional Responsibility.

Formal Opinion 09-455, “Disclosure of Conflicts Information When Lawyers Move Between Law Firms,” acknowledges that ABA Model Rules of Professional Conduct prohibit a lawyer from revealing information relating to her representation of a client.  Protected information includes the identity of the client and the issues involved in representation, unless the client consents to disclosure or unless an exception to the rule applies.  “Disclosure of conflicts information does not fit neatly into the stated exceptions,” and there are practical difficulties in obtaining consents from all prior clients to disclose their information to potentially multiple potential new law firms, notes the opinion.

But the model rules also require a lawyer contemplating a lateral move to adopt reasonable procedures to detect potential conflicts between the interests of the lawyer’s current and past clients, and those of the prospective new firm.  Most times, ”lawyers should be permitted to disclose the persons and issues involved in a matter, the basic information needed for conflicts analysis,” according to the opinion, which notes that legal ethics standards are “rules of reason.”

Still, there are rare occasions in which such information is privileged, and could prejudice the rights of a client or former client.  The opinion suggests the identities of clients planning a hostile takeover, contemplating a divorce or appearing before a grand jury might constitute privileged information.   And although information disclosure should never be greater than reasonably necessary to accomplish conflict analysis, the opinion notes that some legal matters might require fact-intensive analysis of more extensive information.

In those cases, firms may be able to conduct the analysis based on information from sources other than the moving lawyer or use an alternate analytical process, or the lawyer may be able to obtain client consent to the disclosure.  Ultimately, the opinion suggests the lawyer may have to forego the move.

When such disclosures are made, the lawyer or firm receiving the information may only use it for conflict analysis, notes the opinion.  Also, the timing of disclosure can be important—not at initial stages of the hiring process, and only after substantive discussions about employment have taken place.

Formal Opinion 09-455 is available from the ABA Center for Professional Responsibility at http://www.abanet.org/cpr.

The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions for the guidance of lawyers, courts and the public interpreting and applying the ABA Model Rules of Professional Conduct to specific issues of legal practice and client-lawyer relationships.  Opinions are dated to reflect when committee members voted, rather than the publication date.

With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world.  As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

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