9.1Firm-wide Spread: Imputation (Rule 1.10)

Rule 1.10 — Imputation of conflicts of interest

While associated in a firm, no lawyer shall knowingly represent a client when any one of them practicing alone would be prohibited by Rule 1.7 or Rule 1.9, unless one of two exceptions applies.

Exception 1: Personal interest conflict (not imputed):

• The prohibition is based solely on the disqualified lawyer's personal interest; and

• The conflict does not present a significant risk of materially limiting the remaining lawyers' representation.

Examples: strong political beliefs; a close family relationship with opposing counsel; a sexual relationship with a client.

Exception 2: Screening for former-firm conflicts (Rule 1.10(a)(2)): Applies only when the conflict arose at a prior firm, not the current one. The firm may continue if all four conditions are satisfied:

• The disqualified lawyer is timely screened from any participation;

• The disqualified lawyer receives no part of the fee from that matter;

• Written notice is promptly given to the affected former client, including a description of screening procedures, a statement of compliance, information about review availability, and an agreement to respond to inquiries; and

• Certifications of compliance are provided by the screened lawyer and a firm partner at reasonable intervals upon the former client's written request and upon termination of screening.

What "screened" means (Rule 1.0(k)): the isolation of the lawyer from any participation in the matter through the timely imposition of procedures within the firm that are reasonably adequate under the circumstances to protect the information the isolated lawyer is obliged to protect. Announcing a screen is not the same as having one. Rule 1.0, Comment [9] names measures that may be appropriate: a written undertaking by the screened lawyer to avoid any communication with other firm personnel and any contact with firm files or other information relating to the matter; written notice and instructions to all other firm personnel forbidding communication with the screened lawyer about the matter; denial of access by the screened lawyer to firm files or other information, including information in electronic form, relating to the matter; and periodic reminders of the screen. Even where screening measures have been adopted, a tribunal may consider additional factors in ruling on a motion to disqualify (Rule 1.10, Comment [7]).

Comment [8] — Salary exception: A screened lawyer may still receive regular salary and a partnership share established by prior independent agreement. Only the specific fee from the conflicted matter must be withheld.

Rule 1.10(b) — After a lawyer departs. The remaining firm is not prohibited from representing a person with interests materially adverse to those of the departed lawyer's former client whom the firm no longer represents — if that client stayed, Rule 1.7 governs and bars the adverse work — unless both conditions are satisfied:

• The matter is the same or substantially related to the departed lawyer's prior matter; and

• At least one remaining lawyer holds confidential information material to that matter.

Rule 1.10(c) — Waiver. Any disqualification under Rule 1.10 may be waived by the affected client under the conditions of Rule 1.7.

Government lawyers are carved out (Rule 1.10(d)). Imputation involving current or former government lawyers runs through Rule 1.11(b)–(d), not this Rule.

Scope of "firm": Private firms, legal aid organizations, government agencies, and corporate law departments. Beyond those, whether two or more lawyers constitute a firm can depend on the specific facts (Rule 1.0, Comment [2]). Two practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as a firm — but if they present themselves to the public in a way that suggests they are a firm, or conduct themselves as a firm, they should be regarded as a firm for purposes of the Rules. The terms of any formal agreement between the lawyers are relevant, as is the fact that they have mutual access to information concerning the clients they serve; and in doubtful cases it is relevant to consider the underlying purpose of the Rule involved, so a group may be a firm for one Rule and not for another.

Non-lawyer employees and pre-admission work: Paralegals and other nonlawyers are not covered by Rule 1.10(a) imputation — the firm is not disqualified — nor does Rule 1.10(a) disqualify the firm where the lawyer is prohibited from acting because of events before the person became a lawyer, for example work the person did as a law student; but such persons ordinarily must be screened from the matter, and the same screening analysis applies when they hold a duty to protect a former employer's confidential information.

Appearance of impropriety: A conflict must actually exist to trigger disqualification; the mere appearance of one is not, by itself, a violation.