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Model Rule 1.10 Amendments Affect Lateral Moves

By Jeffrey B. Tracy, Litigation News Associate Editor – February 26, 2009

The ABA House of Delegates has voted to adopt a proposed amendment to Model Rule of Professional Conduct 1.10, submitted by the Standing Committee on Ethics and Professional Responsibility. This proposed amendment would make it easier for lawyers in private practice to move laterally, but it raises ethical concerns among Section leaders over the lack of need for client consent.

The Section of Litigation opposed the Standing Committee’s proposed amendment and submitted its own proposal. The delegates considered the two proposals at the ABA Midyear Meeting in Boston on February 16, 2009.

Rule 1.10 and the Proposed Amendment
Model Rule 1.10 had provided that a lawyer’s conflicts of interest, which have arisen from involvement in a matter handled at one firm, follow that attorney to a new firm and are imputed to the lawyers in the new firm.

The proposal adopted by the Delegates, Recommendation 109, enables a law firm to “screen” the incoming attorney from representation adverse to the former client to allow the firm to continue representing its client without the consent of the incoming attorney’s former client. The Standing Committee’s proposal eliminates the need for client consent.

An Alternative Proposed Amendment
The Section’s alternative recommendation would have permitted certain lawyers who had limited participation and involvement in the case and did not learn material, confidential information to go to work for an adverse law firm without client consent as long as the transferring lawyer is screened and provides appropriate certification of compliance of proper screening.

At the Midyear Meeting, Lawrence J. Fox, Philadelphia, PA, ABA delegate, made a motion to substitute the Section’s recommendation for the Standing Committee’s recommendation.

“The world is watching,” said Fox. “The world is watching what the ABA will do and what it thinks about loyalty to clients.” Several other members of various state bars also spoke in favor of and against the motion to substitute.

After a call of the question, the motion to substitute failed by a vote of 182–267. The Standing Committee’s Recommendation 109 passed by a vote of 226–191.

Analysis of the Decision
“Today the ABA abandoned its commitment to client loyalty and confidentiality for nothing more than an undemonstrated need for lawyer convenience,” said Fox after the Delegate vote. “Today, we compromised our birth right.”

“While we are disappointed in the outcome of the vote, we are proud of the Section’s leadership on this issue,” says Robert L. Rothman, Atlanta, GA, Section of Litigation chair. “With the support of groups such as the ABA Standing Committee on Professionalism, the Section of Tort Trial and Insurance Practice, the National Conference of Federal Trial Court Judges, and others, the Section of Litigation led the fight to preserve the ethical principle of client loyalty and the basic fiduciary concept of placing client interests ahead of lawyer interests.”

“Unfortunately, under new Model Rule 1.10, clients who believe their interests are placed at risk when their former lawyer moves to an adverse law firm no longer can merely refuse to waive the conflict created by the lateral move, they must bear the burden of going to court if they wish to disqualify the former lawyer and his or her new firm,” says Rothman.

“We believe the new rule undermines client loyalty and sends the wrong message to clients, who will see this as the profession placing its own economic interests ahead of the best interests of our clients,” he says.

Keywords: Model Rules of Professional Conduct 1.10, ABA Standing Committee on Ethics and Professionalism, ethics, conflict of interest, switching firms, lawyer-client relationships

  • February 5, 2009 – This article is very one-sided. The House chose correctly between the proposals. The Section of Litigation proposal was not in the best interests of clients.
  • March 19, 2009 – Having experienced the lop-sidedness of the conflicts issue where a client baselessly refused to waive a conflict in a ploy to position itself in nationwide litigation, I whole-heartedly support the ABA House's decision.


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