COMMENTS:
Definition of “Firm”
[1]For purposes of the Rules of Professional Conduct, the term "firm" denotes a lawyer or lawyers in a professional business organization (see Rule 6 of the Rules of the Supreme Court of the State of Hawai‘i) or lawyers employed in a legal services organization or the legal department of a corporation or other organization. See Rule 1.0(d) of these Rules. Whether two or more lawyers constitute a firm within this definition can depend on the specific facts. See Comments [3] through [5] to Rule 1.0 of these Rules.
Principles of Imputed Disqualification
[2]The Rule of imputed disqualification stated in paragraph (a) gives effect to the principle of loyalty to the client as it applies to lawyers who practice in a law firm. Such situations can be considered from the premise that a firm of lawyers is essentially one lawyer for purposes of the Rules governing loyalty to the client, or from the premise that each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom the lawyer is associated. Paragraph (a) operates only among the lawyers currently associated in a firm. When a lawyer moves from one firm to another, the situation is governed by Rules 1.9(b) and 1.10(b) and (c) of these Rules.
[3]The Rule in paragraph (a) does not prohibit representation where neither questions of client loyalty nor protection of confidential information are presented. Where one lawyer in a firm could not effectively represent a given client because of strong political beliefs, for example, but that lawyer will do no work on the case and the personal beliefs of the lawyer will not materially limit the representation by others in the firm, the firm should not be disqualified. On the other hand, if an opposing party in a case were owned by a lawyer in the law firm, and others in the firm would be materially limited in pursuing the matter because of loyalty to that lawyer, the personal disqualification of the lawyer would be imputed to all others in the firm.
[4]The Rule in paragraph (a) also does not necessarily prohibit representation by others in the law firm where the person prohibited from involvement in a matter is a nonlawyer, such as a paralegal or legal secretary. Nor does paragraph (a) necessarily prohibit representation if the lawyer is prohibited from acting because of the events before the person became a lawyer, for example, work that the person did while a law student. Such persons, however, may be screened where effective from any personal participation in the matter to avoid communication to others in the firm of confidential information that both the nonlawyers and the firm have a legal duty to protect. See Rules 1.0(l) and 5.3 of these Rules.
[5]Rule 1.10(b) operates to permit a law firm, under certain circumstances, to represent a person with interests directly adverse to those of a client represented by a lawyer who formerly was associated with the firm. The Rule applies regardless of when the formerly associated lawyer represented the client. However, the law firm may not represent a person with interests adverse to those of a present client of the firm, which would violate Rule 1.7 of these Rules. Morever, the firm may not represent the person where the matter is the same or substantially related to that in which the formerly associated lawyer represented the client and any other lawyer currently in the
firm has material information protected by Rules 1.6 and 1.9(c).
[6]Where the conditions of paragraph (c) are met, imputation is removed, and consent to the new representation is not required. Lawyers should be aware, however, that courts may impose more stringent obligations in ruling upon motions to disqualify a lawyer from pending litigation. Requirements for screening procedures are stated in Rule 1.0(l) of these Rules. Paragraph (c)(2) does not prohibit the screened lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly related to the matter in which the lawyer is disqualified. Notice, including a description of the screened lawyer’s prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.
[7]Rule 1.10(d) reminds the practitioner that the disqualification of the individual attorney can be waived with the consent of the affected client or former client under conditions stated in Rule 1.7 of these Rules. The conditions stated in Rule 1.7 require the lawyer to determine that the representation is not prohibited by Rule 1.7(b) and that each affected client or former client has given consent to the representation after consultation and confirmed in writing. In some cases, the risk may be so severe that the conflict may not be cured by client consent. For a discussion of the effectiveness of client waivers of conflicts that might arise in the future, see Comment [22] to Rule 1.7 of these Rules. For a definition of consent after consultation, see Rule 1.0(c) of these Rules.
[8]Where a lawyer has joined a private firm after having represented the government, imputation is governed by Rule 1.11(b) and (c), not this Rule. Under Rule 1.11(d), where a lawyer represents the government after having served clients in private practice, nongovernmental employment or in another government agency, former-client conflicts are not imputed to government lawyers associated with the individually disqualified lawyer. Furthermore, separate units of a government agency, such as the office of attorney general, may undertake concurrent representation that would otherwise offend Rule 1.10(a), so long as no prejudice is suffered by any of the clients.
[9]Paragraph (c) of Rule 1.10 is new. Like paragraph (b), it applies when a lawyer moves from a private firm to another firm, and is intended to create procedures similar in some cases to those under Rules 1.11(a) and (b) of these Rules for lawyers moving from a government agency to a private firm.
[10]A transitioning lawyer very well may have no confidential information if the lawyer did no work on the matter at the former firm and the matter was not the subject of discussion with the lawyer generally, for example at firm or working group meetings. The lawyer must search the lawyer’s files and recollections carefully to determine whether the lawyer has confidential information. The fact that the lawyer does not immediately remember any details of the former client's representation does not mean that the lawyer does not in fact possess confidential information regarding the matter. However, even if the lawyer has no confidential information about the representation of the former client, the new firm is disqualified unless all of the screening procedures are followed.
[11]In situations where the personally disqualified lawyer was involved in a matter, or had confidential information, the new firm will generally only be allowed to handle the matter if the former client at the former law firm of the personally disqualified lawyer consents and the new firm reasonably believes that the representation will not be adversely affected, all as required by Rule 1.7 of these Rules. This differs from the provisions of Rule 1.11, in that Rule 1.11(b) permits a firm to handle a
matter against a government agency, despite one of its attorneys possessing material knowledge gained in the matter while at the agency, regardless of the agency’s consent, provided that the procedures of Rule 1.11(b)(1) and (2) are followed. Likewise, Rule 1.11(c) permits a firm to handle a matter against a person about whom the newly-arrived attorney possesses confidential information obtained while formerly working at the government agency, without the consent of the agency, but only if the newly-arrived lawyer is screened and not apportioned any part of the fee.
[12]The former client is entitled to review of the screening procedures if the former client believes that the procedures will not be or have not been effective. If the matter involves litigation, the court before which the litigation is pending would be able to decide motions to disqualify or to enter appropriate orders relating to the screening, taking cognizance of whether the former client is seeking the disqualification of the firm upon a reasonable basis or without a reasonable basis for tactical advantage or otherwise.
[13]Where a lawyer is prohibited from engaging in certain transactions under Rule 1.8, paragraph (l) of that Rule, and not this Rule, determines whether that prohibition also applies to other lawyers associated in a firm with the personally prohibited lawyer.
