ABA House OKs Lateral Lawyer Ethics Rule Change

Anonymous
Feb 18, 2009 11:12 AM CST

The ABA’s change in the imputed disqualification rule absolutely makes sense.  The old rule placed too much power in the hands of a former client who can deny giving a waiver or consent for any reason it wants thereby adversely impacting attorneys’ careers and livelihoods who can be prevented from taking job offers.  In fact, I was a victim not long ago of the old imputed disqualification rule.  I was given an offer to join a firm and left my old firm.  A conflict unexpectedly arose (based on a minimal amount of work I did on a matter for the former client) and the former client refused to give a waiver simply out of spite.  It also did not bother their conscience at all that their denial of consent was impacting my ability to get back to work and have an income.  I was a person of no consequence to them so what did they care.  There was an apparent history (which I had nothing to with and knew nothing about) between the former client and a client and partner at the new firm.  Simply because of their hatred for them, the former client refused to give a waiver and the new firm withdrew its offer to employ me out of fear of an imputed disqualification.  I was therefore left suddenly unemployed.  Had this present rule been in effect at that time, I likely would have been able to join the new firm utilizing an ethical screen.  Human beings are not open books or vessels of easily accessible information.  Attorneys understand their obligations not to disclose any confidential information and exercise that obligation day in and day out in their profession whenever they learn of client confidences.  Moreover, I can’t imagine any scenario in which a client would be willing to gratuitously give a waiver as they receive nothing in return and, in their minds at least, are bearing some kind of risk of their confidential information being disclosed.  The new ABA rule strikes a balance between protecting client confidences and permitting lawyers to move in the job market.  It also prevents former clients from unreasonably standing in the way of a person having a job.  If screens could be used with government lawyers moving to private practice, there is no valid reason why lawyers moving between private firms cannot be effectively screened also.  The new rule is without doubt a good thing.

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Anonymous
Feb 22, 2009 3:28 AM CST

I am not sure that utilizing screens with government lawyers moving to private practice had any material effect on or was a substantial cause of the “revolving door” phenomenon.  I think it would have been the same even if screens had not been used as lawyers are paid to help clients (whether they are large companies or individuals) wade through complex regulations or legislation.  That would also be true for lawyers who went straight into private practice, without ever having worked for the government.  Or lawyers who worked for the government would simply move to a firm that had no conflict at the time they are hired, and at some point in the future be involved in an unrelated (and hence non-conflicting) matter and simply do the same thing for a different client involved in a matter against a government entity.  If anything, I would have thought that there was more reason not to use screens with government lawyers because, assuming they do go to an adverse firm and have confidential information they could disclose, not just a single client would be effected, but potentially the public at large could be effected if the disclosure adversely impacted a secret government investigation for example.  Although the government is usually open to more public inspection and scrutiny, it does at times conduct secret investigations or activities in carrying out its function to protect the public at large.  Therefore, if screens were to be used, I would have thought use in the private sector would have been allowed first rather than potentially risking disclosure of confidential government information that could effect many more people.  However, it seems that the profession wanted to motivate attorneys to take government jobs without having to worry about coming back to the private sector.  And that was one of the main reasons for allowing screens with government lawyers.  In that same vein, lawyers moving to different firms in the private sector should not be precluded in advancing their careers.  Is there any other profession or job where a former client or employer can effectively have a veto power over you taking a new job?  I can’t think of one.  So I am not sure why the legal profession should have it as lawyers are not the only people or professionals who learn of confidential information in their jobs.  I know there are states that recognize common law duties to former employers (even in the absence of any express employment agreements) such that if an employee goes to work for a competing organization, they have a common law duty not to disclose any confidential business information or trade secrets they may have learned at their former job.  But even in those situations, the former employer does not have a veto power over the new employer hiring the person.  The old imputed disqualification rule essentially gives that veto power to a former client.  In every instance it is virtually certain that a client will deny consent because they will think ‘why should we bear any risk whatsoever of our confidential information potentially being disclosed.’  They gain nothing by giving a waiver or consent.  Also, as far as I am aware, there are no rules or common law duty that says the former client cannot withhold their consent unreasonably.  Thus, in every case, the former client will then deny giving consent or a waiver for any reason it wants and the attorney has no recourse or remedy.  It was high time that the ethical screen be accepted in the private sector and I hope the new ABA rule serves as a model for states and courts to follow.

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