Thinking of switching firms? Consider possible ethics conflicts.
Inside the Law Office February 1, 2010
One of the biggest changes between practicing law today and yesteryear is the frequency with which lawyers change firms. Once a rarity, these days it seems most attorneys don't finish their careers at the same firm where they began them.
As that mobility has emerged, related issues have arisen. Conflicts of interest, in particular, have been a concern, which is why the American Bar Association recently released an ethics opinion concerning disclosure when attorneys change law firms.
"As we've developed now with very, very large law firms, large client bases and multiple cities and everything else, the potential for conflicts of interest and breaches of confidentiality are huge," said Geoff Stern, chair of the professional responsibility practice at Kegler Brown Hill + Ritter.
Stern said the largest firm when he began practicing after graduating from the Moritz College of Law (then known as The Ohio State University College of Law) in 1968 was Vorys, Sater, Seymour and Pease, with all of 30 lawyers.
Needless to say, times have changed.
The problem lies in the collision between protecting a client's sensitive information and the receiving firm's interests.
The ABA Model Rules of Professional Conduct don't make the matter any clearer. Since being revised in 2007, they call for disclosure when an attorney changes firms while simultaneously defining confidential client information as "any information relating to the representation of a client."
A person's name and the most intimate details of litigation both fit under that broad umbrella.
"The rule ... is written broadly," said Ruth Bope Dangel, staff counsel for the Board of Commissioners on Grievances and Discipline for the Supreme Court of Ohio. "The concern with lawyers who switch firms is how are we going to prevent conflict if we can't reveal a name."
"They don't realize how significant a change that is," added Stern. "Under the new rules, the name of a client clearly can be confidential. It used to be that that would not be the case in most instances."
In contrast with the rest of the legal world, where by-the-letter interpretation is the rule of thumb, the ABA opinion says its Model Rules are "rules of reason," meaning lawyers should use common sense when determining whether to disclose information.
In cases where it could be potentially harmful to the client if information were released, client permission needs to be obtained.
"You really don't know until you get there," said Alvin Mathews, a member of the litigation group at Bricker & Eckler. "What the opinion seems to state is that there may be certain situations where it may not be in the client's best interests to disclose the information without their consent. Depending on the harm that might result from the client, the client may or may not give that consent. But the lawyer has to be careful enough to seek permission in that instance."
Mathews cited hostile takeovers and divorce litigation as examples of cases in which client consent would be necessary.
The ABA opinion suggests that a lawyer who is switching firms may have to postpone or simply forego the move altogether if that consent can't be obtained. However, there are some other ways to get information.
Stern said he mostly represents lawyers, judges and law firms at his current practice, so if he were to change firms, he couldn't disclose who he was representing or any other details. But that doesn't prevent him from pointing to the public records at the Supreme Court as a source of possible information.
"They (the ABA) recognize realistically that this information is more obtainable sometimes than we'd guess," said Stern.
If a conflict does arise, it doesn't necessarily mean the lawyer has to abort the move. There are other options available to keep the moving attorney from situations where that conflict becomes relevant.
If, for example, an attorney leaves one firm for another and the two firms are on opposite sides of a certain case, so long as the moving attorney didn't have substantial responsibilities on the case at the old firm, he can still complete the move as long as he is barred from involvement on the case in question with the new office.
"The new firm can screen that lawyer away from participation in the matter and not give that lawyer any fee in the matter, and they're required to give written notice to the affected former client," said Dangel.
A bigger problem emerges when a conflict of interest isn't discovered until after the move has been completed.
"If the lawyer moves and that client decides to come with them, and that information is screened later and a conflict arises, the lawyer may have to withdraw (from representing the client)," said Mathews.
Situations like these underscore why the disclosure process is so vital in the first place. Even though virtually all client information is protected under the Model Rules, the common-sense approach authorized by the ABA ethics opinion is a welcome one to attorneys such as Mathews.
"I just think that the opinion is obviously one that has been needed for a while because, with lawyers moving between firms on an increasing basis, lawyers certainly need guidance on what to do in that instance," he said.