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Louisiana Legal Ethics

1.10 Rule 1.10 Imputed Disqualification: General Rule

1.10:100 Comparative Analysis of Louisiana Rule

¥ Primary Louisiana References: LA Rule 1.10
¥ Background References: ABA Model Rule 1.10, Other Jurisdictions
¥ Commentary:

1.10:101 Model Rule Comparison

The text of LRPC 1.10(a) is identical to its counterpart, MR 1.10(a). LRPC 1.10(b) prevents a firm from knowingly representing a person in the same or a substantially similar matter to one in which a lawyer newly associated with the firm, or his prior firm, represented a client who was materially adverse to the person if the new lawyer had acquired material information about the matter which is protected by LRPC 1.6 or 1.9(b). MR 1.9(b) prevents a lawyer from knowingly representing a person in the same or a substantially similar matter to one in which his former firm represented a client who was materially adverse to the person if the lawyer had acquired material information about the matter which is protected by LRPC 1.6 or 1.9(c). Unlike MR 1.9(b), LRPC 1.10(b) does not expressly allow a client to consent to representation under those circumstances.

LRPC 1.10(c) allows a firm to represent a client whose interests are materially adverse to those of a client represented by a lawyer who is no longer with the firm, unless the matter is Òsubstantially related to that in which the formerly associated lawyer represented the clientÓ and lawyers remaining in the firm have Òinformation protected by Rules 1.6 and 1.9(b) that is material to the matter.Ó MR 1.10(b) also allows a firm to represent such a client as long as the client is no longer represented by the firm. For representation under MR 1.10(b) to be proper, the matter must not be the Òsame or substantially related to that in which the formerly associated lawyer represented the clientÓ and there must be no lawyers remaining in the firm who have material information protected by MR 1.6 and MR 1.9(c).

Both LRPC 1.10(d) and MR 1.10(c) allow the client to waive this disqualification.

1.10:102 Model Code Comparison

LRPC 1.10(a) prevents lawyers in a firm from knowingly representing a client when any one of them would be precluded from doing so by rules 1.7, 1.8(c), 1.9 or 2.2. LRPC 1.10(b) applies when a firm associates a new attorney, preventing the firm from knowingly representing a client whose interests are materially adverse to a client previously represented by the new attorney or his former firm in the same or a substantially related matter concerning another client when the attorney had acquired information protected by 1.6 and 1.9(b) about the former client. DR 5-105(D) creates an absolute bar on the same type of representation, precluding any partner, associate or any other lawyer affiliated with a lawyer who is forced to withdraw from or decline employment under any Disciplinary Rule, from accepting or continuing such employment. This Model Code provision is different from LRPC 1.10(b) in two respects. First, DR 5-105(D) requires associates or partners of a lawyer who was forced by the Disciplinary Rules to decline or withdraw from employment to decline or discontinue such employment regardless of whether they had received protected information about the representation. Second, it restricts representation by Òany other lawyer affiliated withÓ the disqualified lawyer or his firm. LRPC 1.10(b) also differs from the Model Code, requiring that representation of the firmÕs client be Òmaterially adverseÓ to the representation of the former client and that the new lawyer possess protected information about the former client that would be ÒmaterialÓ to this new relationship before the firm will be disqualified.

LRPC 1.10(c) allows a firm to represent clients with interests materially adverse to those of clients who were represented by an attorney who has left the firm unless it is substantially the same matter in which the former attorney represented the client and there are remaining attorneys who possess information protected by LRPC 1.6 or 1.9(b). DR 5-105(A) poses a more general rule which prevents a lawyer from accepting employment if his judgment on behalf of an existing client is likely to be adversely affected by the new client or if it will result in his representing differing interests. Unlike LRPC 1.10(c), the Model Code does not require that the new representation be substantially related to the former clientÕs representation by the firm, nor does it matter if some remaining attorneys have protected information before representation by the firm will be precluded. Under the Model Code, if the lawyerÕs judgment will be adversely affected by accepting the new employment, then the lawyer must decline the representation, regardless of the other circumstances that may or may not exist.

LRPC 1.10(d) allows a client to waive the lawyerÕs disqualification pursuant to LRPC 1.7. Under LRPC 1.7(b)(1), the lawyer must reasonably believe that the representation will not be adversely affected by his responsibilities to a former client before the representation may continue. DR 5-105(C) allows a lawyer to proceed with the representation described above if both clients consent after disclosure, but it must also be obvious to the lawyer that he can do so without affecting his judgment.