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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Ohio Legal Ethics Narrative

I. CLIENT-LAWYER RELATIONSHIP

1.10 RULE 1.10 IMPUTATION OF CONFLICT OF INTEREST: GENERAL RULE

1.10:100 Comparative Analysis of Ohio Rule

  • Primary Ohio References: Ohio Rule 1.10
  • Background References: ABA Model Rule 1.10
  • Ohio Commentary: Greenbaum, Lawyer’s Guide to the Ohio Code of Professional Responsibility §§ 5.124-5.125

1.10:101 Model Rule Comparison

In Ohio Rule 1.10(a), “knowingly” has been deleted before “represent a client when” and the following has been added after “when” : “the lawyer knows or reasonably should know that”.

In Ohio Rule 1.10(b), “is no longer associated” has been substituted for the Model Rule language “has terminated an association”; “no lawyer in that firm shall thereafter represent” has been substituted for “the firm is not prohibited from thereafter representing”; and “if the lawyer knows or reasonably should know that either of the following applies:” has been substituted for “unless:”.

In subdivision (b)(1), the words “the matter is the same or substantially related to that in which” have been deleted at the outset, and the words “in the same or a substantially related matter;” have been added at the end after “client”.

New divisions Ohio Rule 1.10(c) and (d), dealing with side-switching and screening, have been added; as a result, MR 1.10(c) and (d) have become Ohio Rule 1.10(e) and (f). One word in MR 1.10(c) has been changed in Ohio Rule 1.10(e): the word “required” has been substituted for “prescribed” after “disqualification”.

1.10:102 Ohio Code Comparison

The following are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 1.10: DR 5-105(D), Kala v. Aluminum Smelting & Refining Co. (1998), 81 Ohio St.3d 1.

1.10:103 Definition of “Firm”

In the terminology section of the Ohio Rules, Rule 1.0(c) states that “firm” or “law firm” denotes a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a private or public legal aid or public defender organization, a legal services organization, or the legal department of a corporation or other organization. Government agencies are not included in the definition of “firm.” Ohio Rule 1.0 cmt. [4A]. (Note that Ohio Rule 1.10 cmt. [1] does not reflect the addition in Ohio to the MR 1.0(c) definition -- “lawyers employed in a private or public legal aid or public defender organization.” See also Ohio Rule 1.0 cmt. [4].)

One pre-Rule Ohio decision that applied the imputed-disqualification rule to a lawyer not formally in a firm with another lawyer, but where the public could reasonably have viewed the office-sharing arrangement as a “firm,” was Winblad v. Deskins, 150 Ohio App.3d 527, 2002 Ohio 7092, 782 N.E.2d 160 (Cuyahoga). A similar set of facts is set forth in Ohio Rule 1.0 cmt. [2]. See also Restatement (Third) of the Law Governing Lawyers § 123(3) (2000). Under the Rules, resolution of the “firm” issue in such circumstances “can depend on the specific facts.” Ohio Rule 1.0 cmt. [2].

1.10:200 Imputed Disqualification Among Current Affiliated Lawyers

  • Primary Ohio References: Ohio Rule 1.10(a)
  • Background References: ABA Model Rule 1.10(a)
  • Ohio Commentary: Greenbaum, Lawyer’s Guide to the Ohio Code of Professional Responsibility §§ 5.106-5.110, 5.123
  • Commentary: ABA/BNA § 51:2001; ALI-LGL § 123; Wolfram § 7.6

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer’s Guide to the Ohio Code of Professional Responsibility §§ 5.106-5.110, 5.123 (1996).

Imputed disqualification - In general: Under the doctrine of imputed disqualification, if an individual lawyer in a firm would be disqualified from handling a matter, then the entire firm is disqualified as well. Pursuant to the terms of Ohio Rule 1.10(a), none of the lawyers in a firm shall represent a client when “the lawyer knows or reasonably should know” that any one of them practicing alone would be prohibited from doing so by Rule 1.7 or 1.9, “unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.”

Several justifications have been advanced to support the doctrine of imputed disqualification. Imputed disqualification has been supported by the theory that any client of a lawyer is also a client of the firm with which the lawyer is affiliated. Thus, each lawyer in the firm owes the client a duty of loyalty. It can also be explained by a presumption of shared confidences. All lawyers at a firm are presumed to have access to the confidences and secrets of any firm client and a corresponding duty to protect those confidences and secrets. Ohio Rule 1.10(a) reflects these bases for imputed disqualification. See Rule 1.10 cmts. [2] & [3].

Comment [3] elaborates on these values and on the exception relating to prohibitions based on a personal interest of the disqualified lawyer in the following terms:

The rule in division (a) does not prohibit representation where neither questions of client loyalty nor protection of confidential information are presented.

Rule 1.10 cmt. [3]. On the personal-interest point, two rules need to be consulted. For personal conflicts addressed in Ohio Rule 1.8, imputation is covered by Ohio Rule 1.8(k), discussed in section 1.8:1200, rather than Ohio Rule 1.10. See Ohio Rule 1.10 cmts. [3] & [8]. For the imputation of other personal conflicts, Ohio Rule 1.10 controls. Comment [3] provides that there is no imputation if “the usual concerns justifying imputation are not present.” Thus,

where one lawyer in a firm could not effectively represent a given client because of strong political beliefs, for example, but that lawyer will do no work on the case and the personal beliefs of the lawyer will not materially limit the representation by others in the firm, the firm should not be disqualified.

"On the other hand,”

if an opposing party in a case were owned by a lawyer in the law firm, and others in the firm would be materially limited in pursuing the matter because of loyalty to that lawyer, the personal disqualification of the lawyer would be imputed to all others in the firm.

Ohio Rule 1.10 cmt. [3].

Imputed disqualification – Parsing the language of Ohio Rule 1.10(a): The primary sticking points in Rule 1.10(a) are “the lawyer” (which lawyer? any lawyer in the firm? probably) and what that lawyer “knows or reasonably should know.” From a disciplinary point of view, there would seem to be little quarrel with a reading of the Rule that limits an ethics violation to a lawyer in the firm who has the requisite knowledge concerning a prohibited conflict involving any lawyer in the firm and nevertheless proceeds in the face of that conflict. Accord 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 14.10, at 14-31 (3d ed. Supp. 2005-1). ("In the disciplinary context, the rule applies only to ’knowing’ violations.”) The difficulty arises when, as is often the case, the ethics rules (particularly those addressing conflicts of interest) are used in deciding disqualification motions in litigation. In such a context, would it be consistent with the policies underlying the conflicts rules (loyalty, confidentiality) to permit Lawyer A to represent a client that Rule 1.7 or 1.9 would prohibit his partner, Lawyer B, from representing, merely because Lawyer A did not have actual or constructive knowledge of Lawyer B’s conflict? Such a result seems inconsistent with the general rule that confidences known by a lawyer in a firm are presumed shared with all other lawyers in the firm. Moreover, it is difficult to reconcile with the “none of them shall represent” language in the Rule and would, we think, threaten the principles of loyalty and confidentiality calling for firm-wide imputation (absent consent and/or effective screening) in the circumstances. Again, Hazard and Hodes support this distinction. See id. ("In the disqualification context, a firm may be disqualified even if the conflict remained inadvertent, because the purpose of disqualification is protection of the former client, not punishment or deterrence.”) There is disqualification case law in which the knowledge factor alledgedly was absent, at least for a time, the most notable of which is probably Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311 1321 (7th Cir. 1978). See further discussion of the comparable problem arising under Rule 1.10(b), at section 1.10:400.

Imputed disqualification where conflict arises within one firm: This situation is now covered by Ohio Rule 1.10(a), subject to the waiver/consent provisions of Rule 1.10(e). See discussion of Rule 1.10(a) supra. See also discussion of “consent screens” in section 1.10:300 infra.

Imputed disqualification involving a nonlawyer: Ohio Rule 1.10 cmt. [4] states that

division (a) also does not prohibit representation by others in the law firm where the person prohibited from involvement in a matter is a nonlawyer, such as a paralegal or legal secretary. Nor does division (a) prohibit representation if the lawyer is prohibited from acting because of events before the person became a lawyer, for example, work that the person did while a law student [e.g., as a summer law clerk at a firm]. Such persons, however, ordinarily must be screened from any personal participation in the matter to avoid communication to others in the firm of confidential information that both the nonlawyers and the firm have a legal duty to protect. See Rules 1.0(l) and 5.3.

(Bracketed material added.)

Imputed disqualification where lawyer changes firms and brings client to new firm: This is also controlled by Ohio Rule 1.10(a), subject to 1.10(e).

Imputed disqualification where lawyer changes firms, but does not bring client to new firm: When a lawyer changes firms, those clients choosing to continue to be represented by the old firm, rather than moving with the lawyer to the new firm, become former clients of the migratory lawyer. As in any former-client situation, the lawyer’s duties to a former client may generate a disqualifying conflict with a current client. See sections 1.9:200-1.9:400. Thus, in moving to a new firm, the lawyer carries with him or her duties to former clients that have the potential to generate conflicts with clients of the new firm, as well as imputed disqualification of the new firm in matters involving former clients of the migratory lawyer.

The leading Ohio case is Kala v. Aluminum Smelting & Refining Co., 81 Ohio St.3d 1, 688 N.E.2d 258 (1998), extensively discussed in sections 1.9:200 and 1.10:300. Ohio now deals with this situation in two different divisions of Ohio Rule 1.10 -- (c) and (d) -- depending on the circumstances. Pursuant to 1.10(c), if a lawyer migrating to a new firm had substantial responsibility in a matter for a former client at the former firm, then no lawyer at the new firm shall knowingly represent, in the same matter, a person whose interests are materially adverse to those of the lawyer’s former client. According to the Ohio Code Comparison to Rule 1.10, this is intended to codify the holding of the Kala case. Under Rule 1.10(c), same-case side switching by a lawyer who had “substantial responsibility” for the matter at the former firm calls for imputation of the migrating lawyer’s conflict under Rule 1.9 to the entire new firm, without any opportunity to cure the imputation by screening. The first sentence of Comment [5B] expressly so states:

Screening is not effective to avoid imputed disqualification of other lawyers in the firm if the personally disqualified lawyer had substantial responsibility for representing the former client in the same matter in which the lawyer’s new firm represents an adversary of the former client.

Ohio Rule 1.10 cmt. [5B]. The comment adds the rather obvious conclusion that “[a] lawyer who was sole or lead counsel for a former client in a matter had substantial responsibility for the matter.” If the lawyer was not lead counsel, the comment advises that substantial responsibility is to be determined by consideration of such factors as “the lawyer’s level of responsibility in the matter, the duration of the lawyer’s participation, the extent to which the lawyer advised or had personal contact with the former client and the former client’s personnel, and the extent to which the lawyer was exposed to confidential information of the former client likely to be material in the matter.” Id.

The second situation involving a lawyer moving to a new firm but not bringing the client along is dealt with in division (d). Division (d) covers all such cases except those covered by division (c). Thus, if the migrating lawyer did not have “substantial responsibility” in the prior matter, and/or the prior matter is not the “same matter,” then any imputation to the new firm can be removed if the firm timely screens the disqualified lawyer and that lawyer is apportioned no part of the fee in the matter (Ohio Rule 1.10(d)(1)) and written notice is provided to any affected former client, Ohio Rule 1.10(d)(2). [As noted in section 1.10:300, in the final version of the Rule, 1.10 cmt. [5A] added that the notice may be given to the former client’s lawyer, even though this option was at the same time deleted from division (d)(2) itself.] According to Comment [5D], the notice that screening procedures have been employed should be given as soon as practicable after the need for screening becomes apparent, but reasonable delay may be justified when disclosure is likely to injure the current client. Ohio Rule 1.10 cmt. [5D]. The screening aspect of division (d) is further discussed in section 1.10:300.

Imputed disqualification when nonlawyer changes firms:  Inasmuch as the imputation rule of 1.10(a) does not apply where the personally disqualified individual in a firm is a nonlawyer, see Rule 1.10 cmt. [4], quoted above, it should follow that the same nonimputation result applies when a nonlawyer changes firms, even though this issue is not directly addressed in the Rule.  Such prohibited nonlawyers will typically be those who move from a firm representing interests adverse to those represented by the new firm.  The Comment [4] result is comparable to that reached pursuant to the more elaborate test for migrating nonlawyers set forth in Green v. Toledo Hospital, 94 Ohio St.3d 480, 764 N.E.2d 979 (2002) (side-switching secretary), discussed in section 1.9:200. In a nutshell, there should be no imputation under Rule 1.10 to the lawyers in the new firm in such circumstances, but screening of the prohibited nonlawyer is nevertheless advisable to ensure protection of confidentiality interests.  See generally 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 14.11 (3d ed. Supp. 2005-1).

Imputed disqualification in non-law firm settings: Most imputed disqualification cases focus on lawyers affiliated in a law firm. Whether the same principles apply to lawyers affiliated in other entities, such as a legal aid or public defender organization, or a corporate legal department, is resolved by Ohio Rule 1.0(c) -- such entities are included in the definition of “firm.” See section 1.10:103. Disqualification of lawyers associated in a firm with former or current government lawyers is controlled by Rule 1.11, not Rule 1.10. See Rule 1.10(f).

These aspects of Rules 1.10 and 1.11 were further explored in Board Opinions 2008-4 and 2008-5. First, in Bd. of Comm’rs on Grievances & Discipline Op. 2008-4, 2008 Ohio Griev. Discip. LEXIS 4 (Aug. 15, 2008), the Board opined that two different assistant public defenders in the same office should not separately represent two co-defendants at a preliminary hearing in a felony case, “because the conflict of interest of one assistant public defender is imputed to the other pursuant to Rule 1.10(a) and Rule 1.9(c).” Id. at *1. For the same reason, a second public defender should not represent a felony co-defendant in an unrelated misdemeanor case, when the other co-defendant is being represented in the felony case by another public defender from the same office. (Imputed disqualification under Rule 1.11 of the members of a law firm with which a part-time city law director is associated is treated in Opinion 2008-5; it is discussed at the end of section 1.11:310.)

1.10:300 Removing Imputation By Screening

  • Primary Ohio References: Ohio Rule 1.10(c) & (d); Kala v. Aluminum Smelting & Ref. Co., 81 Ohio St.3d 1, 688 N.E.2d 258 (1998)
  • Background References: ABA Model Rule 1.10
  • Ohio Commentary: Greenbaum, Lawyer’s Guide to the Ohio Code of Professional Responsibility § 5.111
  • Commentary: ABA/BNA § 51:2001; ALI-LGL § 124; Wolfram § 7.6

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer’s Guide to the Ohio Code of Professional Responsibility § 5.111 (1996).

One solution to the problem of imputed disqualification is to screen the lawyer with the conflict from the other lawyers in the firm, and allow those lawyers unaffected by and screened from the conflict to proceed with the representation. The former OHCPR did not mention this option, and substantial disagreement exists nationwide over its propriety. (The ABA Ethics 2000 Commission proposed that MR 1.10 be amended to recognize screening, but the House of Delegates rejected the proposal at the ABA 2001 annual meeting. See Laws. Man. on Prof. Conduct (ABA/BNA), 17 Current Rep. at 494 (2001).) Nevertheless, both Ohio case law (see below) and ethics opinions of the Board of Commissioners (see Bd. of Comm’rs on Grievances & Discipline Op. 89-013, 1989 Ohio Griev. Discip. LEXIS 20 (May 30, 1989); Bd. of Comm’rs on Grievances & Discipline Op. 88-020, 1988 Ohio Griev. Discip. LEXIS 3 (Aug. 12, 1988)) made clear that screening was an available alternative in Ohio under certain circumstances. But cf. Bd. of Comm’rs on Grievances & Discipline Op. 93-10, 1993 Ohio Griev. Discip. LEXIS 2, at *9 (Dec. 3, 1993) (refusing to decide issue since it called for judicial determination, but noting that in instances of simultaneous representation, “chinese walls have generally not been favored.” (citing Laws. Man. on Prof. Conduct (ABA/BNA) §  51:106 (1990))). Most, if not all, of the Ohio cases dealing with screening mechanisms involve former-client conflicts.

The leading case in Ohio on ethical screening with respect to former-client conflicts is the opinion of the Supreme Court in Kala v. Aluminum Smelting & Refining Co., 81 Ohio St.3d 1, 688 N.E.2d 258 (1998). (For a detailed discussion of Kala, see section 1.9:200.)

As is more fully set out in section 1.9:200, Kala was a side-switching attorney case in which the Court found the circumstances (lawyer was negotiating for employment with firm representing other side — without telling client — while lawyer was pursuing client’s appeal) so “egregious” that no amount of protective devices by the lawyer’s new firm would have been adequate to keep its lawyers from being disqualified by imputation.

One of the many reasons the Kala opinion is of interest is that, on the imputed disqualification/ screening point itself, the actual holding of the Court on the facts is not acknowledged in the general rule of law set forth in the syllabus. The long-standing rule in Ohio has been that, with respect to Supreme Court opinions other than those decided per curiam, the syllabus, not the text, states the law of the case. Although the Supreme Court Rules for the Reporting of Opinions (S Ct Rep R) were amended effective May 1, 2002 to eliminate the syllabus rule (the law of the case is now stated in both the syllabus and the text, S Ct Rep R 1(B)), the Supreme Court Clerk’s Office has informally advised that the syllabus rule will continue to apply to all Supreme Court opinions rendered prior to May 1, 2002. Pursuant to this advice, the old regime would apply to Kala, and thus its syllabus states “the controlling point or points of law decided in and necessarily arising from the facts of the specific case before the Court for adjudication.” Former S Ct Rep R 1(B). (For a more detailed discussion of the 2002 reporting rules, see section 3.3:400.)

On the facts presented in Kala, which indicated timely and effective screening by the new firm (prior to lawyer joining new firm, it erected screen, sent trial documents to off-site storage, and made appellate file available only through lawyer handling appeal), there was “nothing the [new] firm could have done” to cure the former client’s perception that he had been abandoned by his lawyer, and “[n]o steps of any kind could possibly replace the trust and confidence that [plaintiff] had in his attorney and the legal system if such representation is permitted.” 81 Ohio St.3d at 14, 688 N.E.2d at 268. As a result, “the appearance of impropriety was so great that the attempts made by the [new] firm to erect a Chinese wall were insufficient to overcome the appearance of impropriety. Accordingly, we affirm the disqualification ruling of the court of appeals.” Id.

The Kala syllabus, on the other hand, contains no indication that matters can be so “egregious” that even “adequate and timely screens” will not work to avoid imputed disqualification. Instead, the third part of the three-part syllabus inquiry to be used in ruling on a motion for disqualification “when an attorney has left a law firm and joined a firm representing the opposing party [i.e., a side-switching attorney]” is:

If the attorney did have personal contact with or knowledge of the related matter [at his or her former firm], did the new law firm erect adequate and timely screens to rebut a presumption of shared confidences with the new firm so as to avoid imputed disqualification?

81 Ohio St.3d at 1, 688 N.E.2d at 260 (syllabus).  In the course of adopting this rebuttable-presumption rule in the syllabus, the Supreme Court rejected plaintiff Kala’s implication that the presumption of shared confidences “should be irrebutable,id. at 9, 688 N.E.2d at 265 (emphasis by the Court). Instead, the Court concluded “that the fairer rule in balancing the interests of the parties and the public is to allow the presumption of shared confidences with members of the new firm to be rebutted” by the implementation of timely and effective screening mechanisms.  Id. at 10, 688 N.E.2d at 265-66. Nevertheless, the rebuttable presumption recognized both in the syllabus and in the body of the opinion was seen as irrebuttable on the “egregious” facts presented.

Because of the groundbreaking decision of the Ohio Supreme Court in Kala recognizing in syllabus (and text) that screening can avoid imputed disqualification, Ohio Rule 1.10 (unlike MR 1.10) incorporates the screening mechanism into Rule 1.10(d)(1) -- thereby, according to the Task Force’s Ohio Code Comparison, “codify[ing] the rule in Kala.” [But see discussion below.]

At this point, the basic structure of the Kala “codification,” as reflected in the two divisions added to the Ohio version of MR 1.10, should be reiterated.

Ohio Rule 1.10(c) is directed at same-case side-switching: When a lawyer who had “substantial responsibility” in a matter for a former client subsequently becomes associated with a new firm, “no lawyer in the new firm shall knowingly represent, in the same matter, a person whose interests are materially adverse to the interests of the former client.”

Ohio Rule 1.10(d) states that “[i]n circumstances other than those covered by Rule 1.10(c), when a lawyer becomes associated with a new firm, no lawyer in the new firm shall knowingly represent a person in a matter in which the newly associated lawyer is personally disqualified under Rule 1.9 unless both of the following apply:

1) the new firm timely screens the personally disqualified lawyer from any participation in the matter, and that lawyer is apportioned no fee from that matter; [and]

2) written notice is given as soon as practicable to any affected former client.

Comments [5A] and [5B] elaborate on the rules set forth in Rule 1.10(c) and (d). Pursuant to Ohio Rule 1.10 cmt. [5A], divisions (c) and (d) “address imputation to lawyers in a new firm when a personally disqualified lawyer moves from one law firm to another.” The comment further provides that under division (c), the conflict of a lawyer personally disqualified under 1.10(a) is imputed to all lawyers in the new firm, which is prohibited from representation of a client “in the same matter” in which the disqualified lawyer “has had substantial responsibility” “if the client’s interests are materially adverse to those of the former client.” Under division (d), the imputation is removed when the personally disqualified lawyer is “properly screened from participation in the matter and the former client or client’s counsel is given notice.” [Note that in the final amendments, the “or client’s counsel” language was added to Comment [5A], even though comparable language was deleted from 1.10(d)(2).]

Comment [5B] expressly states that screening will not avoid imputed disqualification in those circumstances covered by division (c) -- where the disqualified lawyer had “substantial responsibility” in the same matter at the former firm for the other side. Ohio Rule 1.10 cmt. [5B].

As noted above, divisions (c) and (d) “are added to codify the rule in Kala.Ohio Code Comparison to Rule 1.10. The Summary of Post-Comment Revisions to the Proposed Ohio Rules of Professional Conduct further emphasizes that these changes were made “to conform more closely to the Supreme Court’s syllabus and holding in Kala.” Do they? According to Comment [5B], screening is never effective in a same case side-switch by a lawyer who had substantial responsibility for the matter at the former firm. But this is precisely the irrebuttable-presumption approach that the Supreme Court rejected in syllabus in Kala, where the lawyer in question certainly satisfied the “substantial responsibility” test – he was the lead lawyer in the case for the former client. Moreover, it seems strange indeed that the Supreme Court would have gone to the lengths it did in approving the screening mechanism if it never applies in a same case side-switch by such a lawyer, which is precisely the circumstance that was presented to the Kala Court. Nor would there have been any need for the Court to zero in on the secret negotiations by the migrating lawyer with his soon-to-be new firm, while representing his soon-to-be former client on appeal, in concluding that screening was ineffective on “this set of egregious facts.” 81 Ohio St.3d at 14, 688 N.E.2d at 268. All of this would have been superfluous if the Court had intended to lay down a flat no-screening rule in such cases.  Other commentators as well have read Kala as permitting screening “in almost all instances, including those in which lawyer switches firms in same matter.” 2 Restatement (Third) of the Law Governance Lawyers § 124, reporter’s note to cmt. c, at 307 (2000); see Laws. Man. On Prof. Conduct (ABA/BNA) §§ 51:2028-29 (reading Kala as permitting screening in general, but that egregious facts necessitated disqualification result in case at bar). Be that as it may, Kala is seen by the Task Force as stating just such an absolute-imputation rule; it is reflected in 1.10(c), which has passed muster with the Supreme Court.

In contrast, it is interesting to note that the Michigan Supreme Court on November 14, 2006 amended its ethics rules to make clear that a same-case side switch is controlled by MRPC 1.10(b), not 1.10(a) as the Sixth Circuit had perviously held in Nat’l Union Fire Ins. Co. v. Alticor, 466 F.3d 456 (6th Cir. 2006) (side-switching lawyer’s new firm disqualified; new firm “cannot avoid imputed disqualification by ’screening’ Egan from this matter, no matter how diligently.”   Id. at 459). In repudiation of the Sixth Circuit’s decision in Alticor, Michigan’s Rule 1.10(b) unambiguously provides that screening may be used to avoid imputation, not only in substantially related matters, but in the same matter as well (see MRPC 1.10(b)(1)), which is consistent with our reading of the Kala syllabus rule.  The staff comment appended to the amendment makes no bones that it was “prompted by” the Alticor decision of October 18, 2006, cited above, which, according to the staff, badly misread what “was the intent of the rule and has been the practice since the rule was adopted . . . .”   The Sixth Circuit granted rehearing and applied the amended rule, but still found a way to disqualify the targeted firm, this time for failure to comply with the notice requirement of MRPC 1.10(b)(2)Nat’l Union Fire Ins. Co. v. Alticor, 472 F.3d 436 (6th Cir. 2007).

Wisconsin, on the other hand, has recently adopted new ethics rules that include a provision comparable to Ohio Rules 1.10(c) and (d).  (See WRPC 1.10(a)(2).) (Of the 24 states permitting screening, a slight majority (13) follow the Michigan model; in the other 11, screening can be used to avoid imputation in limited circumstances, a la Ohio and Wisconsin.) See Laws. Man. On Prof. Conduct (ABA/BNA) § 51:2004-07 (2007).

In those instances in which imputation can be removed, the prerequisites for doing so are set forth in Ohio Rule 1.10(d)(1) & (2). Subdivision (d)(1) provides that the personally disqualified lawyer must be “timely screen[ed]” by the new firm, and the personally disqualified lawyer apportioned no part of the fee from that matter. Rule 1.10 cmt. [5C] refers to Ohio Rule 1.0(l), where the requirements for effective screening procedures are stated. These are “isolation” of the lawyer from participation in the matter by timely imposed procedures that are “reasonably adequate” to assure that confidential information known by the isolated lawyer remains protected. Steps that may appropriately be taken, depending on the circumstances of the particular case, are set forth in Ohio Rule 1.0 cmt. [9]. A screen is “timely,” as required by Rule 1.10(d)(1), only if “implemented as soon as practical [sic] after a lawyer or law firm knows or reasonably should know that there is a need for screening.” Ohio Rule 1.0 cmt. [10].

Comment [5E] emphasizes that screening will be ineffective if not “timely undertaken” or if there is “insufficient assurance that confidential information known by the personally disqualified lawyer will remain unprotected.” Ohio Rule 1.10 cmt. [5E]. The comment goes on to enumerate the factors to be considered in determining the effectiveness of a screen: (1) firm size and structure, (2) likelihood of contact between the personally disqualified lawyer and the lawyers involved in the current representation, and (3) the existence of safeguards preventing the disqualified lawyer from access to information relevant to the current representation. Id.[One would think that safeguards keeping the lawyer(s) involved in the current representation from having access to such information as may be in the possession of the disqualified lawyer would be equally, if not more, important.]

Subdivision (2) of Ohio Rule 1.10(d) sets forth the other prerequisite to avoiding imputation -- notice. In accordance with (d)(2), written notice must be given to the affected former client. But given by whom? Prior drafts of the Rule made it clear that the notice was to be given by the screening firm. While this is probably still correct, the deletion introduces an unnecessary ambiguity. Although the content of the notice is not stated in division (d)(2), Ohio Rule 1.10 cmt. [5D] provides that the notice required is that “of the screened lawyer’s prior representation and that screening procedures have been employed.” This information should be given “as soon as practicable after the need for screening becomes apparent,” subject to the possibility of reasonable delay if disclosure is likely to significantly injure the current client. Id.

While it has been opined that screening by a firm may not successfully avoid imputed disqualification arising from conflicts among current clients, see Bd. of Comm’rs on Grievances & Discipline Op. 93-101993 Ohio Griev. Discip. LEXIS 2, at *9 (Dec. 3, 1993) (recognizing that “in situations involving simultaneous representation, chinese walls have generally not been favored”), the practice of “consent screening” of current clients by firms is not uncommon, both in Ohio and nationwide.  See, e.g., In re Estate of Knowlton, 2006-Ohio-4905, 2006 Ohio App. LEXIS 4835, at paras. 11, 25, 34 (Hamilton).  “Consent screens” should be differentiated from the “notice screens” regarding former clients contemplated by Rule 1.10(d). Under the notice-screen procedure, effective screening, with notice to the affected former client, is sufficient. Id. Consent is not required. But this device is unavailable where conflicts arise among current clients. In the latter situation, current client conflicts can be cured by the informed consent of the affected parties. Ohio Rule 1.10(e). In securing that consent, a client may want the protection that screening affords. Providing this additional protection is completely consistent with the Rules. Thus, pursuant to a “consent screen,” a firm obtains consent from an existing client, after full disclosure, to the firm’s taking on a representation that is adverse to the client, provided that a screen be put in place. (Typically, the adverse representation is in an unrelated matter.) The screen must effectively insulate information regarding the existing client, as well as the lawyers and firm personnel working on the existing client matter or matters, from the lawyers and personnel working on the new, adverse matter, and vice versa.

Research discloses no litigated Ohio cases dealing with the issue of consent screens, but commentary provides a framework into which such devices comfortably fit. Under the Restatement, conflicting simultaneous representation is permissible, pursuant to informed consent of the affected clients (other than a claim by one client against the other in the same litigation, or where it is objectively not likely that the lawyers can provide adequate representation to one or more of the clients), see 2 Restatement (Third) of the Law Governing Lawyers § 122(2) (2000). It follows that such consent coupled with adequate and timely screening should pass muster a fortiori. Particularly is this so where the matters are unrelated — on such facts, “it would only be in unusual circumstances that a lawyer could not provide adequate representation with consent of all affected clients.” Id. cmt. g(iv), at 275. Consent screening with respect to government lawyers moving to private practice has been sanctioned for many years — see discussion in ABA Formal Op. 342 (Nov. 24, 1975) (reprinted in ABA Standing Comm. on Ethics & Prof’l Responsibility, Formal and Informal Opinions at 110 (1985)) ("whenever the government agency is satisfied that the screening measures will effectively isolate the individual lawyer . . . the government may waive the disqualification of the firm under DR 5-105(D).” Id. at 121.). And see Ohio Rule 1.11(b) (approving screening of former government lawyer, with notice to appropriate government agency). See also Bd. of Comm’rs on Grievances & Discipline Op. 88-020, 1988 Ohio Griev. Discip. LEXIS 3 (Aug. 12, 1988) (suggesting that screening devices might be used to allow county commissioner’s partner to handle, in county’s court of common pleas, cases that commissioner could not handle because of conflict of interest between his role as county commissioner and subject matter of the representation).

Nor is screening alone sufficient to cure a former-client conflict where the firm, rather than a lawyer moving to it, represented the former client; the Ohio Rules do not provide for screening in such circumstances. See Rule 1.10(a). In those instances, consent to the screening approach, after full disclosure, would have to be sought from the former client. Cf. 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 14.10, at 14-31 (3d ed. Supp. 2005-1). Client consent under Rule 1.10 is covered in division (e). See section 1.10:500.

Whether the screening devices used are sufficient in situations where screening is permitted is ultimately a case-by-case determination. In addition to the guidance provided in Rule 1.0(l) & cmt. [9], Rule 1.10 cmt. [5E], and Kala, further helpful information can be found in the Sixth Circuit’s opinion in Manning v. Waring, Cox, James, Sklar & Allen, 849 F.2d 222 (6th Cir. 1988), a decision heavily relied upon by the Board of Commissioners on Grievances and Discipline in its approval of screening as a device to avoid imputed disqualification. Bd. of Comm’rs on Grievances & Discipline Op. 89-013, 1989 Ohio Griev. Discip. LEXIS 20 (May 30, 1989). In Manning, the court quoted with approval from Schiessle v. Stephens, 717 F.2d 417, 421 (7th Cir. 1983), as follows:

“Such a determination [that screening rebuts the presumption of shared confidences] can be based on objective and verifiable evidence presented to the trial court and must be made on a case-by-case basis. Factors appropriate for consideration by the trial court might include, but are not limited to, the size and structural divisions of the law firm involved, the likelihood of contact between the “infected” attorney and the specific attorneys responsible for the present representation, the existence of rules which prevent the “infected” attorney from access to relevant files or other information pertaining to the present litigation, or which prevent him from sharing in the fees derived from such litigation.”

849 F.2d at 225-26.

The burden is on the proponent of screening to demonstrate that the procedures in place are timely and sufficient. See 2 Restatement (Third) of the Law Governing Lawyers § 124, cmt. d(i) (2000). In accord was the pre-Rule case of Ussury v. St. Joseph Hosp., 43 Ohio App.3d 48, 539 N.E.2d 700 (Cuyahoga 1988) (firm seeking to avoid imputed disqualification failed to demonstrate how it would successfully screen side-switching lawyers).

The Supreme Court in Kala cited and commented favorably on both Manning and Board Op. 89-013. Manning is cited, 81 Ohio St.3d at 5, 6-7, 8, 9, 688 N.E.2d at 263, 263-64, 264, 265, and is quoted, 81 Ohio St.3d at 6-7, 688 N.E.2d at 263-64. In adopting the rebuttable presumption of shared confidences, the Court expressly agreed with Opinion 89-013, which “laid out the substantial relationship test and the use of institutional screening mechanisms.” 81 Ohio St.3d at 10 n.5, 688 N.E.2d at 266 n.5. And, in response to plaintiff’s reliance on Ussury, the Kala Court noted that “Ussury impliedly sanctioned screening devices by finding that the new firm had failed to prove the existence of screens to protect confidential information.” 81 Ohio St.3d at 10 n.7, 688 N.E.2d at 266 n. 7.

An example of the successful use of screening devices pre-Rule was provided in Margiotta v. McLaren (In re McLaren), 115 B.R. 922 (N.D. Ohio 1990), a bankruptcy case applying the OHCPR and Sixth Circuit authority. In McLaren, a former-client conflict arose when two firms merged. A lawyer from one of the firms formerly had represented an individual who became the debtor in a bankruptcy action in which the other firm represented the plaintiff-creditor. To avoid imputed disqualification, a number of screening measures were timely instituted: Prior to the merger, the affected lawyers were verbally instructed not to discuss the matter, and the debtor’s files were segregated from the files of the merged firm and locked up to restrict access to them by anyone other than the debtor’s former lawyer. In addition, the debtor’s former lawyer and the lawyer for the plaintiff worked in different departments within the merged firm and had offices in different buildings, thus making it less likely that inadvertent communications about the debtor might take place. The court rejected the argument by the debtor that these measures were insufficient. While acknowledging that the additional measures the debtor suggested — requiring written instructions to the firm at large banning communications about the matter among affected lawyers, as well as placing written notices of quarantine on the restricted-access files and imposing a sign-out procedure to control access to those files — might be useful, the court found them not indispensable; the methods used were sufficient to avoid imputed disqualification on the facts presented. Another pre-Rule law-firm merger case in which screening was held adequate to avoid imputed disqualification is Legge Associates, Inc. v. Dayton Power & Light Co., 113 F.3d 1235, 1997 U.S. App. LEXIS 17567 (6th Cir. 1997) (table).

Finally, it is interesting to speculate how a case like Ussury v. St. Joseph Hosp., 43 Ohio App.3d 48, 539 N.E.2d 700 (Cuyahoga 1988), would be decided under Rule 1.10. According to evidence before the trial court, the side-switching lawyer in that civil action, against a hospital and physicians (presumably a medical-malpractice case but never so stated),

reviewed materials and gave advice relating to the plaintiff’s case while at his former firm. . . .

The trial court could reasonably conclude that the lawyer received protected confidences or secrets while his former firm represented the plaintiff.

Id. at 48-49, 539 N.E.2d at 701.  Did the lawyer have “substantial responsibility” for the matter while he was at his former firm?  While he was not sole or lead counsel, Comment [5B] provides that in other circumstances determination of substantial responsibility involves consideration of factors such as the level of his responsibility, the duration of his participation, the extent to which he advised or had personal contact with the former client, and the extent to which he was exposed to confidential information material to the matter.  Ohio Rule 1.10 cmt. [5B]Ussury doesn’t say what the level of the lawyer’s responsibility was or the duration of his participation.  But it does tell us that he gave advice on the case and likely received confidential information, although not the extent thereof.  These facts would seem to put the case right on the edge between divisions (c) and (d); if he did have “substantial responsibility,” Ussury’s “implied[d] sanction[ing] of screening devices” (in the words of the Kala Court, citing the case approvingly) is difficult to reconcile with the no-screening rule set forth in 1.10(c).

1.10:400 Disqualification of Firm after Disqualified Lawyer Departs

  • Primary Ohio References: Ohio Rule 1.10(b)
  • Background References: ABA Model Rule 1.10(b)
  • Commentary: ABA/BNA § 51:2007; ALI-LGL § 124; Wolfram § 7.6.3

If a lawyer leaves a firm, is the lawyer’s former firm imputedly disqualified from representing a person with interests materially adverse to those of a client of the formerly associated lawyer? The answer, as set forth in Ohio Rule 1.10(b), is that there is imputation, if “the lawyer knows or reasonably should know” that “the formerly associated lawyer represented the client in the same or a substantially related matter” (1.10(b)(1)) or that “any lawyer remaining at the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.” 1.10(b)(2). See Ohio Rule 1.10 cmt. [5]. As the comment further provides, whether or not matters are “substantially related” for purposes of this Rule is defined in Ohio Rule 1.0(n); examples are provided in Ohio Rule 1.9 cmt. [3] (discussed in section 1.9:210).

Compared to prior drafts of proposed Ohio Rule 1.10(b) (as well as to MR 1.10(b)), in which the former firm was “not prohibited” from the representation “unless both” (b)(1) and (b)(2) were present, the adopted language states that the firm is prohibited “if either” (b)(1) or (b)(2) is known to apply. This is a sea-change (unfortunately, for the worse) and was made without the benefit of opportunity for comment by the bar.  The result is that Ohio now provides that, even if no material confidential information exists at the lawyer’s former firm, the lawyer’s personal disqualification is imputed to that firm - thereby preventing the former firm from representing a person with interests adverse to those of a client formerly represented by the departed lawyer – based solely on the fact that the departed lawyer’s representation was in the same or a substantially related matter.

One of the consequences of this formulation is that the former firm is now treated less charitably, for purposes of imputation, than is the new firm: at the new firm, screening can provide the necessary protection against imputation when Rule 1.10(d) is applicable, but there is no such escape for the former firm in such circumstances. This change also puts Ohio out on the Rule 1.10(b) limb all by itself – no other Model Rule state has opted to trigger imputation in situations involving the same or a substantially related matter, where there is no confidential information at the former firm material to the matter. See also 2 Restatement (Third) of the Law Governing Lawyers § 124(1) & cmt. c(i) (2000); Laws. Man. on Prof. Conduct (ABA/BNA) § 51:2001-02, 2022-23 (2007).

A further incongruity is the disconnect between Rules 1.9(b) and 1.10(b). Under 1.9(b), a lawyer whose former firm had represented the client cannot (absent consent) represent a new client in the same or a substantially related matter if (1) the interests are materially adverse and (2) the lawyer has acquired material information protected by Rules 1.6 and 1.9(c).  In contrast, under 1.10(b), the former firm cannot represent a client with interests materially adverse to those of a client of the formerly associated lawyer if either (1) the matter is the same or is substantially related or (2) any lawyer remaining at the former firm has protected information material to the matter.  As a result, the migrating lawyer is precluded from the representation if (1) the interests involved are materially adverse, (2) the matters are the same or are substantially related, and (3) the former lawyer has protected information (1.9(b)), but the former firm is precluded if (1) the interests are materially adverse and either (2) the matters are the same or substantially related or (3) any lawyer at the former firm has protected information. 1.10(b).  As stated in ABA, Annotated Model Rules of Professional Conduct 167-68, 179 (6th ed. 2007) (commentary), the touchstone under both MR 1.9(b) and MR 1.10(b) is the existence of protected information, if in the hands of the former lawyer under MR 1.9(b), and if possessed by the former firm under MR 1.10(b).  Accord 2 Restatement of the Law Governing Lawyers § 124(b) (2000).

In making these changes in Rule 1.10(b), Ohio has also transformed division (b) into a subjective test, premised on the actual or constructive knowledge of “the lawyer”; MR 1.10(b) is objective in nature. A further difficulty with this language is the ambiguity of the reference to “the lawyer.” Is this to be read as stating that if “the lawyer” does not have the necessary knowledge, then there is no imputation after all, even if another lawyer in the firm does have the necessary knowledge? The answer is not readily apparent from the words used, although the overall scheme of the division would seem to point to the result that there is imputation if “any lawyer” in the firm has the requisite knowledge. Otherwise, one would be left with the odd and presumably unintended consequence that remaining lawyer A, not having the requisite knowledge, could proceed with the representation, even though remaining lawyer B did have such knowledge. All such conundrums are avoided under the language of MR 1.10(b).

As is the case with the similar problem in Rule 1.10(a) (see section 1.10:200 at “Imputed disqualification – Parsing the language of Ohio Rule 1.10(a)”) we believe the correct reading of Ohio Rule 1.10(b) is that knowledge is a requisite when applying the Rule for disciplinary purposes, but should not enter the equation when the issue is disqualification. In the latter circumstance, so long as any lawyer in the firm possesses confidential information material to the matter, or, under the Ohio formulation, the former lawyer’s representation was in the same or a substantially related matter, the taint is imputed to the entire firm. Admittedly, this reading will result in disqualification of the firm even if no lawyer in the firm had confidential information relating to the matter, but, as is discussed above, this follows from Ohio’s having changed the division (b)(1) and (2) requisites to the disjunctive, rather than the conjunctive as in all other Model Rule states. Because disqualification is such a severe step, it is possible that the courts will avoid this unsatisfactory result in disqualification cases by requiring that the confidential information element be present in any event, even though the disjunctive reading would still have to be adhered to when applying Rule 1.10(b) in disciplinary matters.

Probably the leading case applying the generally recognized rule of no imputation at the former firm when the issue is disqualification is Novo Terapeutisk Laboratorium v. Baxter Tavenol Labs., Inc., 607 F.2d 186 (7th Cir. 1979) (en banc) (in absence of sharing of confidential information, departed lawyer’s former firm, now representing plaintiff against defendant that was and is client of departed lawyer, not disqualified). (Novo was cited with approval by the Ohio Supreme Court in Kala v. Aluminum Smelting & Refining Co., 81 Ohio St.3d 1, 8, 688 N.E.2d 258, 265 (1998), but not on this point.) See also English Feedlot, Inc. v. Norden Labs., Inc., 833 F. Supp. 1498, 1507 (D. Colo. 1993) (applying Colorado’s Rule 1.10(b)); no imputation where no material confidential information held by departed lawyer’s former firm; motion to disqualify firm denied).

1.10:500 Client Consent [see also 1.7:240 and 1.9:200]

  • Primary Ohio References: Ohio Rule 1.10(e)
  • Background References: ABA Model Rule 1.10(c)
  • Commentary: ABA/BNA § 51:2008; ALI-LGL §§ 122-123; Wolfram §§ 7.2-7.3

Ohio Rule 1.10(e) provides that “[a] disqualification required by this rule [the imputed disqualification rule] may be waived by the affected client under the conditions stated in Rule 1.7.” As stated in Comment [6], “Rule 1.10(e) removes imputation with the informed consent of the affected client or former client under the conditions stated in Rule 1.7,” which conditions require the lawyer’s determination that he or she can represent the affected clients competently, diligently, and loyally, that the representation is not prohibited by 1.7(c), and that each affected client/former client has given informed consent, confirmed in writing. Ohio Rule 1.10 cmt. [6]. Accord 2 Restatement (Third) of the Law Governing Lawyers § 123 cmt. h (2000). Further as to client consent, see section 1.7:240 and Rule 1.0(f) & cmts. [6] & [7]. It should be recognized, however, that in some imputed-disqualification situations, particularly those involving side switching, the likelihood of obtaining consent is, at best, remote.

The Board of Commissioners opined on Ohio Rule 1.10(e) in Op. 2008-2, 2008 Ohio Griev. Discp. LEXIS 2 (June 6, 2008).  The questions before the Board were (1) whether a lawyer director (not corporate counsel) was precluded by Rule 1.7 from representing a client suing the director’s corporation and (2) if so, whether the disqualification was imputed to his firm under Rule 1.10.  Having found that the circumstance presented a nonwaivable conflict barring the lawyer director from the representation under Rule 1.7, the Board turned to Rule 1.10.  First, it looked at Rule 1.10(a) and concluded that the director’s fiduciary duties and personal interest constituted material limitation conflicts that “pose[d] a significant risk of materially limiting the lawyer’s loyalty and independence in representing a client against the corporation,” and therefore was imputed to the lawyer’s firm under Rule 1.10(a).  Although the Board recognized that Rule 1.10(e) provides for waiver of the disqualification by consent of the affected client under the conditions stated in Rule 1.7, those conditions cannot be met here, according to the Board,

because the corporation and the client are directly adverse to each other in the same proceeding.  The corporation is not a client of the law firm but a lawyer director’s fiduciary duties to the corporation cannot be isolated from the lawyer’s professional duties.

Id. at *16.  (The syllabus repeats this same language but adds the word “technically” before “a client,” id. at *2.)  Although the step-by-step detail is not expressly stated in the opinion, the reasoning of the Board presumably is that (1) under 1.10(e) the conditions of Rule 1.7 control whether imputed disqualification can be waived; and (2) if there is a conflict under Rule 1.7(a), Rule 1.7(c)(2) precludes the representation, irrespective of client consent, if the clients are directly adverse in the same proceeding.  The seeming flaw in the Board’s analysis is that the corporation is not a client of the lawyer director and the Rules invoked by the Board all involve current clients.  Query whether the language about the lawyer director not being able to “isolate the fiduciary duties owed to the corporation from his professional duties as a lawyer” solves this problem.  See further discussion of this opinion in section 1.7:240 at “Nonconsentable conflicts - In general.”

1.10:600 Imputed Disqualification of Former or Current Government Lawyers

  • Primary Ohio References: Ohio Rule 1.10(f)
  • Background References: ABA Model Rule 1.10(d)

Imputed disqualification - Former or current government lawyers: Ohio Rule 1.10(f) provides that disqualification issues regarding lawyers associated in a firm with former or current government lawyers are controlled by Ohio Rule 1.11. Comment [7] notes that the imputation rules for former government lawyers now in private practice are stated in Ohio Rule 1.11(b) and (c), not Rule 1.10, and that under Ohio Rule 1.11(d), when a personally disqualified government lawyer was formerly in private practice, nongovernmental employment, or at another government agency, former-client conflicts are not imputed to the government lawyers associated with the personally disqualified lawyer. Ohio Rule 1.10 cmt. [7].

Imputed disqualification of private attorneys associated with part-time government attorney: As stated in Ohio Rule 1.10(f), the disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11. If the association is with former government lawyers, it is clear that the provisions of Rule 1.11(b) and (c), not Rule 1.10, govern. Rule 1.10 cmt. [7]. Pursuant to Rule 1.11(b) and (c), disqualification of other lawyers associated with a former governmental lawyer in a private firm can be avoided by proper screening and notice. Equally clear is that Rule 1.11(d) applies to a current government lawyer with respect to his or her association with other government lawyers and that there is no imputation to the government lawyers with whom the disqualified lawyer is associated. Rule 1.11 cmt. [2]. But what about the part-time government lawyer who also has a private practice and is associated with other lawyers in a firm? This situation is not directly addressed by Rule 1.11, and the answers with respect to imputed disqualification are not entirely clear. Our best effort to sort out this situation is as follows:
First, Rule 1.10(f) states that Rule 1.11 governs disqualification of “lawyers associated in a firm with former or current government lawyers.” Since “firm” does not include a government agency, see Rule 1.0 cmt. [4A], the reference in Rule 1.10(f) to current government lawyers has meaning only if it contemplates a part-time government lawyer associated in a private firm with other lawyers.  Why then, if Rule 1.11 governs, is Rule 1.11 silent on the point?  We do not know.

Second, Comment [9] to Rule 1.11 states that divisions (a) and (d) of the Rule “do not prohibit a lawyer from jointly representing a private party and a government agency when doing so is permitted by Rule 1.7 and is not otherwise prohibited by law.” While “joint representation” typically means joint representation of two or more parties in a single proceeding, it can be argued that in this context the term also refers to simultaneous representation of both government and private parties in separate proceedings, as could be the case of a part-time government lawyer with a private practice. Even if the more traditional reading of “joint representation” is intended, the result for these purposes is no different, inasmuch as representation of the private party would necessarily involve nongovernment representation - i.e., in the lawyer’s part-time private capacity, just as the agency representation would necessarily involve the lawyer wearing his part-time government attorney hat. (Under either reading, the joint representation would be subject to Rule 1.7, as well as ethics laws or regulations dealing with government-employee conflicts.)

Third, if this interpretation of Comment [9] is tenable, then Rule 1.11(d) (current government lawyer) would seem to be applicable with respect to legal work on the government side; as to such work, there is no imputation to other government associates, “[b]ecause of the special problems raised by imputation within a government agency.” Rule 1.11 cmt. [2].  Note that Rule 1.10 cmt. [7] contemplates Rule 1.11(d) as applicable when “a lawyer represents the government after having served clients in private practice.”  And 1.11(d)(2)(i) itself speaks in terms of matters in which the current government lawyer had “participated” in private practice.  Does this mean that government representation “during,” not “after,” private representation, is controlled by a different regimen?  Apparently, but once again, the answer is not clear.

Fourth, the waters get even murkier regarding the part-time government lawyer’s private practice. Rule 1.11 simply does not address the imputation issue concerning firm lawyers with whom a part-time government lawyer is associated in private practice.  With the exception of Comment 9, Rule 1.11 speaks only to conflicts in private practice of a former government lawyer, and Comment 9 itself does not address the imputation issue.  (As noted above, Comment 2 does address the imputation issue, but only with respect to other government lawyers with whom the disqualified lawyer is associated in the agency.)  Taking into account the overall scheme of these Rules and in order to provide some direction in the circumstances, one is left with the less-than-satisfactory conclusion that, with respect to conflicts arising on the private side of the practice of the part-time government, part-time private, practitioner, Rule 1.10(a) probably ought to control, despite the seemingly contrary direction in Rule 1.10(f). As is apparent, these questions are not adequately dealt with by either Rule 1.10 or 1.11, and additional guidance is needed, either in the form of interpretation by the Supreme Court or further, more explicit, elaboration in the Rules.

Note also that Bd. of Comm’rs on Grievances & Discipline Op. 2008-5, 2008 Ohio Griev. Discip. LEXIS 5 (Aug. 15, 2008), addresses the part-time government attorney conflict-imputation issue and, we think, leaves something to be desired in its application of Rule 1.11 to this issue. This opinion is discussed in detail in section 1.11:410.

If the imputation rule set forth in Ohio Rule 1.10(a) is or should be applicable on the private side, that would be consistent with most pre-Rule authority. Thus, to the extent that a part-time county prosecutor would be barred from undertaking a private criminal-defense representation because of a conflict of interest, all other lawyers in his firm would also be barred from doing so under the doctrine of imputed disqualification. Bd. of Comm’rs on Grievances & Discipline Op. 88-008, 1988 Ohio Griev. Discip. LEXIS 28 (June 17, 1988) (from which the Board “departs” in Opinion 2008-5). Cf. Bd. of Comm’rs on Grievances & Discipline Op. 97-4, 1997 Ohio Griev. Discip. LEXIS 5 (June 13, 1997) (full-time law clerk/part-time lawyer cannot appear before common pleas judge for whom he clerks or before any other judge in same division of that court; restriction imputed to members and associates of the firm with whom he practices).

A limited exception to this general rule was suggested by Ohio State Bar Ass’n Informal Op. 75-12 (July 14, 1975) (relying in part on ABA Formal Op. 55 (Dec. 14, 1931)). In Opinion 75-12, the OSBA concluded that a partner or an associate of a part-time prosecutor could accept a court appointment to represent an indigent criminal defendant in a county with only a few practicing attorneys. The exigencies of the situation were considered to outweigh the concerns of the imputed disqualification rule. While the opinion indicated that the OHCPR posed no independent restriction on such representation, the legislature subsequently enacted legislation (effective January 13, 1976) to prohibit the appointment of such affiliated lawyers as defense counsel in criminal actions. ORC 120.39(A) (lawyer who is partner or employee of any prosecuting attorney, city law director, village solicitor, or similar chief legal officer acting as a prosecutor cannot be appointed as defense counsel or co-counsel in a criminal action). See generally Bd. of Comm’rs on Grievances & Discipline Op. 88-008, 1988 Ohio Griev. Discip. LEXIS 28 (June 17, 1988); Ohio State Bar Ass’n Informal Op. 81-4 (Apr. 8, 1981). The statute prohibits the “appointment” of affiliated lawyers to criminal defense matters. It would not, however, prohibit an affiliated attorney from being retained by an indigent defendant on a pro bono basis.  See In re Appeal of a Juvenile, 61 Ohio App.2d 235, 401 N.E.2d 937 (Lake 1978) (ORC 120.39 restrictions do not apply to retained counsel). Such a retention would be both legal, id., and ethical, where circumstances warrant an exception to the usual imputed-disqualification requirements.

While imputed disqualification concerns arise with respect to other lawyers in the same law firm with the part-time government attorney in private practice, as a general rule they do not extend to lawyers with whom the part-time government attorney merely shares or leases office space. Such a relationship, in the absence of “specific facts” pointing to the contrary result (see Ohio Rule 1.0 cmt. [2]), does not make them a “law firm,” and therefore the government attorney’s disqualification ordinarily would not be imputed to the private lawyer. See, under the former OHCPR, Bd. of Comm’rs on Grievances & Discipline Op. 92-13, 1992 Ohio Griev. Discip. LEXIS 8 (June 19, 1992) (no imputation where part-time assistant county prosecutor shared office space with criminal defense attorney; screening nevertheless recommended); Ohio State Bar Ass’n Informal Op. 83-1 (Aug. 22, 1983) (former OH DR 5-105(D) spoke of partners or associates of lawyer or lawyer’s firm, and office sharers are not partners or associates). See section 1.10:103.