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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


New Jersey Legal Ethics

1.10   Rule 1.10 Imputed Disqualification: General Rule

1.10:100   Comparative Analysis of New Jersey Rule

Primary New Jersey References: NJ Rule 1.10
Background References: ABA Model Rule 1.10, Other Jurisdictions
Commentary:
NJ Commentary:

1.10:101      Model Rule Comparison

The New Jersey Supreme Court adopted ABA Model Rule 1.10 with two revisions. The first revision is the addition of RPC 1.10(d), a provision that is not included in the ABA Model Rule 1.10. RPC 1.10(d) prohibits any attorney who terminates an association with a firm, or any other attorneys with whom the terminated attorney subsequently becomes associated, from knowingly representing a client when there is a material risk of violating RPCs 1.6 or 1.9.

The second revision is the addition of RPC 1.10(e), a provision that is not included in the ABA Model Rule 1.10. RPC 1.10(e) generally allows for waivers except when prohibited by state law or regulation, such as the prohibition against a public entity waiving an attorney conflict of interest.

The ABA’s 1989 restructuring of Model Rule 1.10 conforms with the New Jersey Court’s approach to this issue. Compare the 1989 versions of Model Rule 1.10 with the 1983 versions. The ABA in effect adopted the New Jersey approach by incorporating a streamlined version of the 1983 formulation of Model Rule 1.10(b) into Model Rule 1.9. New Jersey’s RPCs, in contrast, retain the 1983 structure. See RPC 1.9, 1.10.

1.10:102      Model Code Comparison

There is no direct counterpart in the New Jersey RPCs.

1.10.103      Definition of "Firm"

A “firm” is any group of lawyers currently practicing in close association. See Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 217 (1988). See Section 24:1-1, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).

1.10:200   Imputed Disqualification Among Current Affiliated Lawyers

Primary New Jersey References: NJ Rule 1.10(a)
Background References: ABA Model Rule 1.10(a), Other Jurisdictions
Commentary: ABA/BNA § 51:2001, ALI-LGL § 203, Wolfram § 7.6
NJ Commentary:

In general, the preclusion of one lawyer from a representation because of a conflict of interest means that no other lawyer working at the same firm may undertake the representation. Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201(1988).

The initial question is whether any individual lawyer presently associated with a firm, a professional corporation, or some other practice group is disqualified from a representation because of a conflict of interest. If the answer is yes, then RPC 1.10(a) prohibits all of the other lawyers at the firm from engaging in the representation. See Section 24:1-1, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).

1.10:300   Removing Imputation by Screening

Primary New Jersey References: NJ Rule 1.10
Background References: ABA Model Rule 1.10, Other Jurisdictions
Commentary: ABA/BNA § 51:2001, ALI-LGL § 204, Wolfram § 7.6
NJ Commentary:

“Screening” a disqualified lawyer may enable a firm to avoid the effects of imputed disqualification only in certain limited circumstances: when a lawyer is disqualified by an appearance of impropriety (rather than an actual conflict) arising from prior government service, see RPC 1.11(b); when an associate changes firms after being involved in some type of “industry-wide” litigation such as toxic tort work, see Advisory Comm. Op. 525 (Apr. 5, 1984); and when a lawyer is disqualified solely because of a familial relationship with an attorney at the firm representing an opposing party, see Advisory Comm. Op. 600 (July 30, 1987). See Section 24:1-3, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).

1.10:400   Disqualification of Firm After Disqualified Lawyer Departs

Primary New Jersey References: NJ Rule 1.10(b)
Background References: ABA Model Rule 1.10(b), Other Jurisdictions
Commentary: ABA/BNA § 51:2008, ALI-LGL § 204, Wolfram § 7.6.3
NJ Commentary:

RPC 1.10(c) provides as follows:

When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer unless:

(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and

(2) any lawyer remaining in the firm has information protected by RPC 1.6 and RPC 1.9(b) that is material to the matter.

When a firm is disqualified under paragraph (a) because a present associate is disqualified, the problem will not be cured by the departure of the associate. See Lawler v. Isaac, 249 N.J. Super. 11, 17-18 (App. Div. 1991), finding not only that the defendant’s law firm in a malpractice action had violated RPC 1.10(a) and RPC 1.10(c) by hiring an associate who had previously handled the case for the plaintiff’s law firm, but that it was disqualified from the case even though the associate had already left. See Section 24:3-2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).

1.10:500   Client Consent

Primary New Jersey References: NJ Rule 1.10(c)
Background References: ABA Model Rule 1.10(c), Other Jurisdictions
Commentary: ABA/BNA § 51:2001, ALI-LGL § 202, Wolfram §§ 7.2, 7.3
NJ Commentary:

RPC 1.10(e) permits a client or a former client to waive an imputed disqualification. The rule provides as follows:

A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in RPC 1.7 except where prohibited by law or regulation, such as the prohibition against a public entity waiving an attorney conflict of interest.

The client “affected” by a conflict is the lawyer’s former client pursuant to RPC 1.9, which is incorporated by reference into RPC 1.10. See Section 24:1-3, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).