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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Alabama Legal Ethics

1.10 Rule 1.10 Imputed Disqualification: General Rule

1.10:100 Comparative Analysis of Alabama Rule

  • Primary Alabama References: AL Rule 1.10
  • Background References: ABA Model Rule 1.10, Other Jurisdictions
  • Commentary:
  • Alabama Commentary:

1.10:101   Model Rule Comparison

ARPC Rule 1.10 includes Section b which differs from MRPC Rule 1.10. However, ARPC 1.10 (b) applies the logic of the model rule while extending the application to include the entire firm with which the lawyer is now associated. Rule 1.10(b) does not allow an attorney or his current firm to represent a client in the same or substantially related matter in which that lawyer or firm with which the lawyer was associated had previously represented the client whose interests are materially adverse and about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(b).

In Ex Parte Terminix, 736 So.2d 1092 (Ala. 1998), the Court refused to adopt a "double imputation" theory of imputed disqualification under which a conflict of interest effecting one law firm is automatically imputed to another firm with which the conflicted firm acts as co-counsel in litigation related to the conflict. Law firms acting as co-counsel are viewed as single firms for the purposes of Rule 1.10. Thus, a conflict does not spread beyond the effected firm unless it is established that the firm passed confidential information about the client in question to the second firm. Rule 1.10 does not contemplate imputed disqualification as a matter of law outside the context of attorneys associated together in a firm.

Opinion RO-99-01 discusses the manner in which referrals may effect imputed disqualification. The Opinion states that a lawyer may not pay the costs of advertising for the services of another lawyer in return for referrals by that lawyer. The Opinion concludes that such an arrangement would violate several rules including the imputed disqualification provisions of Rule 1.10.

Opinion RO-93-03 addressed a question by a lawyer who was an associate at a firm when a partner at that firm reviewed a case brought in by a plaintiff but then decided not to take it. After the associate went to another firm, the defendant's attorney in the before mentioned lawsuit asked the associate to join on the defense. The General Counsel found no ethical violation in the attorney participating in the defense of the client. The Counsel stated: "the general rule is that when a lawyer switches firms he or she must have actual knowledge about a former client before there is any disqualification or imputed disqualification in representing a party adverse to a former client." Because the attorney never represented the client nor received any specific knowledge about the client at his former firm, the General Counsel stated there would not be a violation of Rule 1.10 in representing the defendant.

1.10:102   Model Code Comparison

Inapplicable.

1.10.103   Definition of "Firm"

The term "firm" includes "lawyers in a private firm, and lawyers employed in the legal department of a corporation or other organization, or in a legal services organization."

1.10:200 Imputed Disqualification Among Current Affiliated Lawyers

  • Primary Alabama References: AL Rule 1.10(a)
  • Background References: ABA Model Rule 1.10(a), Other Jurisdictions
  • Commentary: ABA/BNA § 51:2001, ALI-LGL § 123, Wolfram § 7.6
  • Alabama Commentary:

In Green v. Montgomery County, Alabama, 784 F.Supp. 841 (M.D. Ala. 1992), a law firm was disqualified from representing a client in a lawsuit due to attorney's prior telephone conversation with former client in which former client outlined the facts of the case. The Court stated: "The future import, if any, of the Court's decision is that, if . . . lawyers are to avoid similar problems with similar consequences, they must adopt appropriate initial-consultation measures...."

1.10:300 Removing Imputation by Screening

  • Primary Alabama References: AL Rule 1.10
  • Background References: ABA Model Rule 1.10, Other Jurisdictions
  • Commentary: ABA/BNA § 51:2001, ALI-LGL § 124, Wolfram § 7.6
  • Alabama Commentary:

While Alabama does not recognize screening of lawyers as a method to remove an imputed disqualification, screening can be a factor in determining whether the facts warrant disqualification. See also Section 1.7:340 for situations in which the conflict is thrust upon the lawyer.

With respect to non-lawyer employees who change law firms, the same standards used in determining whether a conflict exists as to lawyers is applicable. (RO - 02-01).

1.10:400 Disqualification of Firm After Disqualified Lawyer Departs

  • Primary Alabama References: AL Rule 1.10(b)
  • Background References: ABA Model Rule 1.10(b), Other Jurisdictions
  • Commentary: ABA/BNA § 51:2008, ALI-LGL § 124, Wolfram § 7.6.3
  • Alabama Commentary:

1.10:500 Client Consent

  • Primary Alabama References: AL Rule 1.10(c)
  • Background References: ABA Model Rule 1.10(c), Other Jurisdictions
  • Commentary: ABA/BNA § 51:2001, ALI-LGL § 122, Wolfram §§ 7.2, 7.3
  • Alabama Commentary:

In Alabama, a client may generally provide informed consent to permit an attorney to take positions adverse to that client or former client.