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Legal Ethics

Model Rule Change Recognizes Need for Conflicts Checks Before Lawyers Move, Law Firms Merge

Posted Aug 6, 2012 4:34 PM CDT
By Debra Cassens Weiss

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A change to the ABA model rules recognizes the need to disclose limited client information for conflicts checks before law firms merge or lawyers move to new employment.

The ABA House of Delegates on Monday approved Resolution 105F, which amends Rule 1.6 of the ABA Model Rules of Professional Conduct regarding confidentiality of information.

The amendment says information may be revealed to detect conflicts if it would not compromise attorney-client privilege or otherwise prejudice the client. According to new commentary, the disclosure should not be made until substantive discussions have taken place on the new relationship. Any information disclosed should be used only to the extent necessary to detect and resolve conflicts, according to the comment.

Opponents said the model rule should require lawyers to get informed consent from clients before disclosing their information for conflicts checks. A proposed amendment to add that requirement was rejected by the ABA House, however.

Barbara Mendel Mayden of the ABA Board of Governors told the House it would be "unworkable" to require client consent. She said the changes to the model rule represent “a cautious, limited approach to a fact of life in modern law practice.”

The ABA Commission on Ethics 20/20 recommended the change as part of its examination of how technology and globalization are spurring lawyer mobility.

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