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Formal Ethics Opinion No. 2003-F-147

Inquiry as to the applicability of Rule 1.10 (Imputed Disqualification Rules) to non-lawyer staff.

DR 5-105(D) of Tennessee’s prior ethics rules (Code of Professional Responsibility) required that when a lawyer moves to another firm, the new firm is disqualified “from any further participation in any of the cases in which the attorney had been representing the opposite side prior to the move.” B.O.P.R. Formal Ethics Opinion 81-F-5.

Two questions arose concerning this “imputed disqualification” rule. The first concerned the rule’s applicability when non-lawyer personnel change firms. The second concerns whether screening procedures can be developed in the new firm which isolate the new lawyer or employee so as to avoid the disqualification of the new firm. These two questions were answered in B.O.P.R. Formal Ethics Opinion 87-F-110 (1987). This opinion expands the disqualification rule to include paralegals and disapproved the use of screening procedures.

Two years later the Board reconsidered the screening procedures question and approved “the use of screening procedures as a viable method to avoid the imputed or vicarious disqualification provisions.” The Opinion further stated that the disqualification rule and screening procedures were applicable to non-lawyer personnel. The Opinion provided guidelines to follow in implementing these procedures. B.O.P.R. Formal Ethics Opinion 89-F- 118 (1989).

In 2001 the Tennessee Supreme Court considered this issue. Clinard v. Blackwood,46 S.W.3d 177 (Tenn. 2001). The Court agreed with the analysis of B.O.P.R. Formal Ethics Opinion 89-F-118 and approved screening procedures under limited circumstances. It stated that the sufficiency of the screening procedures would be determined on “a case-by-case basis.” For instance, screening procedures could not allow attorneys to switch “teams” in a pending lawsuit. It also stated that such screening procedures are applicable to non-lawyer personnel. Clinard at 184. The Court, however, submitted an additional test. Clinard at 186. Based upon an “appearance of impropriety” test, the Supreme Court sustained the disqualification of the firm in question.

Both the Board and Supreme Court opinions are based on the older Code of Professional Responsibility. On March 1, 2003 this Code was replaced by new rules on attorney ethics — the Tennessee Rules of Professional Conduct. This inquiry addresses whether the new rules alter the previous understanding as to screening procedures and the applicability of imputed disqualification to non-lawyers.

RPC 1.10 Tennessee Rules of Professional Conduct addresses imputed disqualification. It permits screening procedures to avoid imputed disqualification in limited circumstances. It specifies in Sections C and D the procedures to be utilized in determining the permissibility of any screening procedure.

(C) Except with respect to paragraph (d) below, if a lawyer is personally disqualified from representing a person with interests adverse to a client of a law firm with which the lawyer was formerly associated, other lawyers currently associated in a firm with the personally disqualified lawyer may nonetheless represent the person if both the personally disqualified lawyer and the lawyers who will represent the person on behalf of the firm act reasonably to:
(1) identify that the personally disqualified lawyer is prohibited from participating in the representation of the current client; and
(2) determine that no lawyer representing the current client has acquired any information from the personally disqualified lawyer that is material to the current matter and is protected by Rule 1.9 (C); and
(3) promptly implement screening procedures to effectively prevent the flow of information about the matter between the personally disqualified lawyer and the other lawyers in the firm; and
(4) advise the former client in writing of the circumstances that warranted the implementation of the screening procedures required by this Rule and of the actions that have been taken to comply with this Rule.
(D) The procedures set forth in paragraph (C) may not be used to avoid imputed disqualification of the firm, if
(1) identify that the personally disqualified lawyer is prohibited from participating in the representation of the current client; and
(2) the lawyer’s representation of the former client was in connection with an adjudicative proceeding that is directly adverse to the interests of a current client of the firm; and
(3) the proceeding between the firm’s current client and the lawyer’s former client is still pending at the time the lawyer changes firms.
(E) A disqualification prescribed by this Rule may be waived by the affected client or former client under the conditions stated in Rule 1.7.

The comments to RPC 1.10 state that RPC 1.10 reiterates the Clinard decision as to screening (Comment 9). This conclusion, however, is problematic since Clinard permitted screening procedures only in situations that do not give the “appearance of impropriety”, while the new Rules do not provide “appearance of impropriety standards.” Therefore RPC 1.10 must be construed as more lenient than Clinard as to screening procedures.

The inquiry asks if Rule 1.10 applies to nonlawyer personnel. The Rule does not mention nonlawyers, but neither did the older Disciplinary Rules. The Board in B.O.P.R. Formal Ethics Opinion 89-F-118 (1989) applied imputed disqualification and screening procedures to situations regarding the employment of nonlawyers. The Supreme Court in Clinard did as well. Clearly both the Board and the Court considered the imputed disqualification rules to apply to situations where non-lawyers switched firms, even though there was no specific rule on the point.

RPC 5.3 provides that lawyers insure that conduct of their non-lawyer personnel remains “compatible with these Rules.” It also provides that “a lawyer shall be responsible for the conduct of a non-lawyer if the conduct would be a violation of these Rules if engaged in by a lawyer.” It would therefore appear that the imputed disqualification and screening provisions applies not only when lawyers switch firms, but when non-lawyer personnel switch firms as well.

The inquiring attorney further asks if the clients can waive this conflict. RPC 1.10 (e) states that the imputed disqualification requirements may be waived by the clients pursuant to RPC 1.7. The waiver pursuant to this rule has to be in writing. The waiver can occur only after a consultation, which “shall include explanation of the implications of the common representation and the advantages and risks involved.” Each affected client must consent, and if any client refuses, the firm must be disqualified. The lawyers cannot even request a waiver unless they “reasonably believe the representation (of each client) will not be adversely affected.” Therefore the conflict may be waived unless the attorneys “reasonably believe” that the representation of each client will be adversely affected if there is no disqualification.

This 13th day of June, 2003.
ETHICS COMMITTEE:
Mark L. Hayes, Chair
Charles E. Carpenter
Melvin Wright

APPROVED AND ADOPTED BY THE BOARD


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