Disciplinary Commission issues advisory opinion for law firms on imputed conflicts of interest

IL file photo

The Indiana Supreme Court’s Disciplinary Commission on Friday published a nonbinding advisory opinion focused on Rules of Professional Conduct Rule 1.10, which outlines when a law firm is prohibited from representing a client based on imputed conflicts of interest.

In short, the commission reminded law firms should decline to represent, or withdraw from representing, a client when any individual lawyer at the firm (or joining the firm) is conflicted from the representation. This is the situation unless the conflict is personal to that lawyer, or unless the affected clients have provided informed consent, the commission wrote.

“When a lawyer departs a firm, the firm can represent parties adverse to the departing lawyer’s client unless the matter is the same or substantially related to the one the departing lawyer worked on while at the firm, or others remaining at the firm have information that would preclude representation under Indiana Professional Conduct Rules 1.6 and 1.9,” the advisory opinion states. “A firm is not required to withdraw from a case if a lawyer joining the firm worked on behalf of an adverse party if the lawyer was not the primary lawyer on the case; the lawyer is effectively screened from the case at the firm; and sufficient written notice is provided to affected clients.”

The disciplinary commission further wrote that when potential conflicts inevitably arise in practice, firms need to have effective conflict check procedures, including, “carefully screening matters against the client matters of incoming and outgoing lawyers; taking steps to avoid entering an appearance on a case when a Rule 1.10 conflict exists; and, when possible, avoiding disqualification of the firm from current matters.”

Generally, the commission wrote, the following rules should be followed:

  1. It is unlikely that any lawyer in a firm can represent a party when any lawyer in that firm is prohibited from doing so under Indiana Professional Conduct Rules 1.7, 1.9, or 2.2, unless the firm can meet the standards of ethically obtaining a waiver under Indiana Professional Conduct Rule 1.7(b) or unless the lawyer’s conflict is strictly personal to that lawyer.
  2. The firm of a departing lawyer can represent parties who oppose the client of that departing lawyer, but not in the same or substantially related matter and not when remaining lawyers have confidential information that is material to the matter.
  3. If a lawyer entering a firm can be successfully screened from a matter so the firm does not need to be disqualified under Indiana Professional Conduct Rule 1.10(c), notice must still be provided to any affected client in a manner that the client can determine compliance with the rule.

Relevant rules to review are Rules 1.7, 1.8, 1.9, 1.18 and 2.2, according to the commission.

In the advisory opinion, the commission also laid out four possible ethical minefields, including duties to current clients, a law firm’s duties to former clients of the firm, a law firm’s duties to prospective clients of the firm and migratory lawyer exception to Rule 1.10.

Those scenarios, and how firms should respond, can be read online.

Please enable JavaScript to view this content.

{{ articles_remaining }}
Free {{ article_text }} Remaining
{{ articles_remaining }}
Free {{ article_text }} Remaining Article limit resets on
{{ count_down }}