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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


District of Columbia Legal Ethics

1.10   Rule 1.10 Imputed Disqualification: General Rule

1.10:100   Comparative Analysis of DC Rule

· Primary DC References: DC Rule 1.10
· Background References: ABA Model Rule 1.10, Other Jurisdictions
· Commentary:

1.10:101      Model Rule Comparison

Paragraph (a) of DC Rule 1.10 as originally adopted was substantively identical to its Model Rule counterpart, but in 1996 a proviso was added to that  paragraph of the DC Rule on the recommendation of the Peters Committee, to the effect that any personal disqualification created by a lawyer's receipt of confidential information in an initial interview with a potential client was not imputed to the lawyer's firm.  This change in DC Rule 1.10(a) was designed to deal with the problem illuminated by ABA Formal Opinion 90-358 (1990), which pointed out that in an initial interview with a prospective client, before a conflicts check can be made, there is a risk that the interviewing lawyer will learn confidences of the prospective client that effectively disqualify the firm from a pending representation, even though the firm cannot undertake the proposed representation of the prospective client. 

In due course the ABA Ethics 2000 Commission proposed a new Rule 1.18 as a solution to this problem.  Pursuant to the recommendation of the DC Rules Review Committee, an almost identical Rule 1.18 was also added to the DC Rules, and the former provisions in DC Rule 1.10(a) addressing the problem, being no longer necessary, were deleted.

As originally adopted, both  Model Rule and DC Rule 1.10(a) provided that while lawyers were associated in a firm, none of them could knowingly represent a client that any other firm lawyer was prohibiting from representing by Rules 1.7, 1.8(c) [1.8(b) in the case of the DC Rule], 1.9 or 2.2.  That paragraph of both Rules was amended in the recent round of extensive amendments to drop the references both to Rule 2.2 (which was being deleted from both Rules) and to Rule 1.8.  Both Rules also had added to them provisions excepting from this imputation of disqualification circumstances where the individual disqualification rests on an interest of the individual disqualified lawyer that does not present a significant risk of adversely affecting the representation of the client by other firm lawyers. The Model Rule and the DC Rule use somewhat different language to effectuate this exception, and the Model Rule has the exception in the text of 1.10(a) while the DC Rule has it in a new subparagraph (a)(1).  In addition, the DC Rule had added to it a new subparagraph (a)(2) providing a separate exception from the imputation of disqualification if the representation is permitted by Rules 1.11, 1.12 or 1.18.

The provisions in paragraphs (b) and (c) of DC Rule 1.10 as originally adopted, relating to a lawyer's switching firms, were more restrictive than the corresponding Model Rule provisions on imputed disqualification in two significant respects; the more restrictive provisions, however, were largely eliminated by the Peters Committee recommendations that were put into effect in 1996.  One of those more restrictive provisions was that DC Rule 1.10(b) disqualified a law firm from representing a person in a matter if a lawyer at the firm had either previously represented a client whose interests were materially adverse in the same or a substantially related matter, or , in connection with such a prior representation, had acquired confidential information material to the matter; whereas in the corresponding Model Rule provision (which was originally MR 1.10(b) but was moved to MR 1.9(b) in a 1989 amendment), the conjunction joining the two provisions was and rather than or.  Thus, the DC Rule disqualified the law firm when only one of the two conditions set forth was met, while the Model Rule required both conditions.  This disparity between the DC Rule and the Model Rule was largely eliminated by the 1996 amendments by simply substituting and for or in DC Rule 1.10(b), although there remained some differences in terminology.  The other more restrictive aspect of DC Rule 1.10 as originally adopted was that paragraph (c) prohibited a firm from representing a person whose interests were adverse to a client of a lawyer formerly at the firm if the matter was the same or substantially related to a matter handled by the lawyer or any lawyer left in the firm had confidential information material to the matter.  The corresponding Model Rule provision (which was originally MR 1.10(c) but was changed to MR 1.10(b) after MR 1.10(b) became MR 1.9(b) in the 1989 amendment) prohibited a firm from representing the person only if both of these two conditions were met.  This disparity was largely eliminated by the 1996 amendments by dropping subparagraph (c)(2) in the DC Rule, which referred to any lawyer remaining in the firm having material information relating to the former representation.

As the respective Rules 1.10 now stand, after adoption of the amendments suggested by the Ethics 2000 Commission and the Rules Review Committee, paragraph (b) of the DC Rule, addressing circumstances where a lawyer has become associated with a firm, largely corresponds to paragraph (c) of the Model Rule, and paragraph (c) of the DC Rule, addressing circumstances where the lawyer has terminated his association with a firm, corresponds to paragraph (b) of the Model Rule.  However, in one respect the DC Rule's restriction on lawyers joining a firm, in paragraph (b), is less restrictive than its Model Rule counterpart, in that it does not impute a new lawyer's disqualification to other lawyers in a firm when the new lawyer's disqualification results from that lawyer's having participated in or acquired confidential information material to a matter "under circumstances covered by Rule 1.6(g)" — meaning prior to becoming a lawyer but in the course of assisting a lawyer.  [See 1.6:260, above.]  Comment [21] to DC Rule 1.10(b) explains that the exception was meant to avoid impairing the mobility of lawyers who previously had been employed in nonlawyer positions such as summer associates and paralegals.

Lending Lawyers to Governmental Entities

Another unique provision of the DC Rule 1.10 is paragraph (e), which permits a lawyer affiliated with a firm to be lent on a full-time but temporary basis to the Office of Corporation Counsel  without being considered to be associated with the firm for purposes of imputing disqualification under Rule 1.10(a).  Rule 1.10(e) provides, however, that the lawyer's firm cannot appear on behalf of an adversary in a matter in which the firm's lawyer is engaged.  This exception to the general rule of imputed disqualification is justified on public interest grounds as allowing law firms to provide assistance to the designated public agency.  See Comments [21]-[25] to Rule 1.10.  A related provision, DC Rule 1.11(h), provides that lawyers who have been lent to these offices per DC Rule 1.10(e) will upon their return to the firm be treated as former government officers or employees for purposes of Rule 1.11.  These provisions, initially applying only to the Office of Corporation Counsel, were adopted by the DC Court of Appeals, upon petition of the DC Bar, in November 1991.  In 1995, the provisions of both DC Rules 1.10 and 1.11 regarding lawyers lent to the Office of Corporation Counsel were amended to add similar references to the DC Financial and Management Assistance Authority (commonly known as the "Control Board").  In connection with the 2006 revisions to the DC Rules, the references to the Control Board were deleted in recognition that the Control Board had gone out of existence, and the references to the Office of Corporation Counsel were changed to refer instead to the Office of the Attorney General, in recognition of the renaming of that office.

DC Ethics Opinion 268 (1996) [discussed more fully under 1.7:290 and 1.7:300 above] addresses the applicability of Rule 1.7's restrictions on conflicting representations when a lawyer or law firm provides volunteer legal assistance to the D.C. Corporation Counsel's office while simultaneously representing private clients against the City or its agencies.

1.10:102      Model Code Comparison

DR 5-105(D) of the Model Code provided, without exception, that "if a lawyer is required to decline or withdraw from employment under a Disciplinary Rule, no partner or associate or any other lawyer affiliated with him or his firm may accept or continue such employment." The DC version of DR 5-105(D), like Rule 1.10, made clear that not all grounds for disqualification of an individual lawyer are grounds for disqualifying that lawyer's firm. The DC version permitted the representation of a client by a firm despite the rule of imputed disqualification when a lawyer in the firm was disqualified because of his or her mental condition, because of being discharged by a client, because of a want of competence in a particular area or because of impaired professional judgment generally. See "Revolving Door," 445 A.2d 615 (DC 1982) (amending DR 5-105(D) to provide exceptions for disqualifications arising from DR 2-110(B)(3)-(4), DR 6-101(A)(1), and DR 5-101(A)). DC Rule 1.10 achieves the same result in a different way.

1.10.103      Definition of "Firm"

In Comment [1] to Model Rule 1.10, the term "firm" is defined to include lawyers employed in a private firm, in the legal department of a corporation or other organization, and in a legal services organization. The corresponding Comment to DC Rule 1.10 expressly excludes "a government agency or other government entity" from its definition of a firm. This exception follows a recommendation of the Sims Committee intended to avoid the potentially harsh result that would occur if all lawyers in a government agency were disqualified vicariously because one of the lawyers was personally disqualified. See DC Ethics Opinion 240 (1993).

The specific characteristics of an association among two or more lawyers, including the terms of any formal agreement and the sharing of confidential client information, often must be considered in determining whether a "firm" exists. [See 0.4:430] Where lawyers hold themselves out to the public as a single firm, however, they generally are regarded as a firm for purposes of Rule 1.10. See Comment [1]; DC Ethics Opinion 192 (1988) (concluding that firms that describe themselves as "associated" or "correspondent" should be regarded as "affiliated" for purposes of imputed disqualification under DR 5-105(D)); DC Ethics Opinion 247 (1994) (concluding that an "of counsel" relationship was sufficiently close to impute disqualification under Rule 1.10(a)); Borden v. Borden, 277 A.2d 89 (DC 1971) (concluding that Rule DR 5-105(D) vicariously disqualified lawyers employed by the same legal services organization).

1.10:200   Imputed Disqualification Among Current Affiliated Lawyers

· Primary DC References: DC 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

[It should be noted that the subject of imputed disqualification with respect to clients of the former firm of a migrating lawyer, addressed by DC Rule 1.10(b), is dealt with in this narrative under Rule 1.9 [at 1.9:300], since the topical outline reflects the organization of the Model Rules, and the provision corresponding to DC Rule 1.10(b) is now to be found in MR 1.9(b).]

Like its Model Rule counterpart, DC Rule 1.10(a) provides that while lawyers are "associated in a firm" none of them shall knowingly represent a client when one of them would be disqualified under Rule 1.7, 1.8(b) [the Model Rule is 1.8(c)], 1.9, or 2.2.

DC Ethics Opinion 303 (2001) [which is more fully discussed under 7.1:220 below] addresses the ethical restrictions potentially affecting the sharing of office space by unaffiliated lawyers, including the possible hazard of being treated as a "firm" for purposes of imputing conflicts.

In DC Ethics Opinion 268 n.10 (1996), the Legal Ethics Committee, addressing the point that a lawyer assisting the Corporation Counsel's office as a volunteer might have a conflict in accepting a representation that involved opposing lawyers in that office, noted the possibility that a conflict "in the nature of a personal conflict, as opposed to one derived from the lawyer's representation of another client," would not be imputed to other lawyers in a firm. It cited in this connection ABA Formal Opinion 96-400 ("Job Negotiations with Adverse Firm of Party").

DC Ethics Opinion 255 (1995) held that a lawyer employed elsewhere in a full-time non-legal capacity who provides occasional assistance to a law firm on a contract basis will disqualify the law firm under Rule 1.10(a) if the lawyer is associated with the firm in a matter in which his full-time employment disqualifies him by reason of a personal interest under Rule 1.7(b)(4); but that no such imputed disqualification arises from matters in which the contract lawyer does not participate, so long as clients of the firm are informed of the nature of the relationship and no impression is created that there is a "continuing" (by which the Committee evidently meant "continuous") relationship between the lawyer and the law firm.

DC Ethics Opinion 247 (1994) addressed imputation resulting from an "of counsel" relationship among lawyers. The Opinion initially determined that under DC Rule 1.9 a lawyer is barred from representing a purchaser of real estate in an action against the seller where the lawyer had previously performed some services for both seller and purchaser in a substantially related matter. The Opinion then considered whether another lawyer who listed himself as "of counsel" to the disqualified lawyer would also be disqualified under Rule 1.10. The Opinion observed that it had previously been decided, under the DC predecessor provision DR 5-105(D), that firms "associated" with or having a "correspondent" relationship to another firm would be disqualified if the other firm were disqualified, in part because the terms fostered an impression of an "ongoing and regular relationship" among all the lawyers in the two firms. See DC Ethics Opinion 192 (1988). The opinion concluded that an "of counsel" relationship is similarly close, so that a lawyer who is "of counsel" to a disqualified lawyer would also be disqualified under Rule 1.10.

Rule 1.10 was the basis for the disqualification of defense counsel in United States v. Davis, 780 F. Supp. 21 (DDC 1991), where counsel's partner had previously represented a person who was cooperating with police against the defendant, introduced undercover officers to defendant and codefendants, and would testify at trial. The court said that, regardless of whether there had been any actual sharing of confidential information between the partners, there was an appearance of unfairness. The court also determined that counsel's disqualification did not violate the defendant's Sixth Amendment right to counsel. In Borden v. Borden, 277 A.2d at 93, the DC Court of Appeals determined that DR 5-105(D), the precursor to Rule 1.10, prevented a lawyer employed by the Neighborhood Legal Services Program from representing a husband in a divorce action when the wife was already represented by a lawyer from the Program. The court was concerned that a different result would "encourage a misapprehension that the special nature of such representation justifies departure from the professional standards."

DC Ethics Opinion 227 (1992), embracing the approach to migratory nonlawyers set out in ABA Informal Opinion 88-1526 (1988), says that although a paralegal or other nonlawyer who moves from one law firm to another will be disqualified from working on a matter that is the same as or substantially related to one he or she worked on in the previous firm, the disqualification will not be imputed to the new firm if the paralegal is properly screened. Because Rule 1.10 expressly refers only to "lawyers," the opinion states, the rule does not impute the paralegal's disqualification to the firm. The opinion goes on to say, however, that Rule 5.3 (Responsibilities Regarding Nonlawyer Assistants) requires a law firm to screen a paralegal who has confidences about a client gained in former employment from the entire matter unless there is client consent to the paralegal's participation in the case.

See also DC Ethics Opinion 285 (1998), discussed under 4.4:200, below (relying on Opinion 227).

1.10:300   Removing Imputation by Screening

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

As just stated, screening is effective in avoiding imputation of the disqualification of peripatetic non-lawyer personnel resulting from their receipt of client confidences while working on a matter for one law firm and then joining a new law firm working on the same or a substantially related matter for an adverse client. DC Ethics Opinion 227 (1992). Screening is, moreover, specifically contemplated under Rule 1.11 as a means of avoiding imputed disqualification when lawyers move from government agencies to practice elsewhere.

Screening without more is not, however, sufficient to avoid imputed disqualification in the case of a migratory lawyer whose new firm seeks to represent a person with materially adverse interests to the lawyer's former client at another firm, where the matter is the same or substantially related. See DC Ethics Opinion 232 (1993) (treating Rule 1.10(a) as a strict rule of imputed disqualification where lawyers are concerned and concluding that the existence of a screen would not remove the obstacle of imputed disqualification). In addition to screening, consent of the former client is required. DC Ethics Opinion 174 (1986) specifically addresses the appropriateness of screening procedures for migratory lawyers under Rule 1.10's precursor provision DR 5-105(D). Consistent with the strict approach taken under Rule 1.10, the opinion declines to treat the screening procedures set forth under DR 9-102(B) and (C) of the DC Code, applying to former government lawyers, as sufficient for purposes of avoiding imputed disqualification in the case of lawyers moving between private firms. The opinion states that the general principle of imputed disqualification is "inescapable" in that context, save as there is client consent.

1.10:400   Disqualification of Firm After Disqualified Lawyer Departs

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

As discussed under 1.10:101 above, prior to November 1, 1996, the DC rule was more restrictive than its Model Rule counterpart with respect to disqualifying the remaining lawyers in a firm from which a lawyer representing a client departs.

DC Ethics Opinion 212 (1992) points out that under DC Rule 1.10(c) a law firm may not undertake representation adverse to a former client of a lawyer once at the firm in a matter substantially related to a matter undertaken for the former client even where all firm lawyers who represented the former client have left and no remaining lawyers have confidential client information related to the matter. The Opinion states that under former DR 5-105(D), representation under these circumstances would have been permitted. The Opinion notes, however, that under Rule 1.10(c) a firm is disqualified if either (1) a substantial relationship exists between the new matter taken on by the firm and the matter involving the former client or (2) any lawyer in the firm has confidential client information. The Opinion notes that Rule 1.10's drafters were concerned with the "unseemly spectacle" of a law firm's switching sides in a pending case immediately after the departure of all of the lawyers involved on the other side. As discussed under 1.10:101 above, one of the Peters Committee proposals adopted by the Court of Appeals rescinds Rule 1.10(c)(2) and thereby eliminates the second of these grounds for disqualification.

1.10:500   Client Consent

· Primary DC References: DC Rule 1.10(d)
· Background References: ABA Model Rule 1.10(c), Other Jurisdictions
· Commentary: ABA/BNA § 51:2001, ALI-LGL §§ 122, 123, Wolfram §§ 7.2, 7.3

Rule 1.10(d) specifically provides that a "disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7." In United States v. Childress, 731 F. Supp 547 (DDC 1990), the court did not vicariously disqualify defense counsel even when it was discovered that the counsel's law partner had represented one of the codefendants in a substantially related matter. In refusing to disqualify defense counsel, the court relied on the codefendant's written waiver of his right to seek the defense counsel's disqualification. See DC Ethics Opinion 227 (1992) (observing that screening alone does not enable a law firm to avoid being disqualified by imputation from representing a potential client where a lawyer in the firm had previously represented a client with interests materially adverse to a current client and the matters are substantially related, but that consent of the former client is necessary to avoid such disqualification).