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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Oregon Legal Ethics

1.10   Rule 1.10 Imputed Disqualification: General Rule

1.10:100   Comparative Analysis of Oregon Rule

Primary OR References: DR 5-105(G)
Background References: ABA Model Rule 1.10, Other Jurisdictions
Commentary:
OR Commentary: EOL §§ 12.19-.20

1.10:101      Model Rule Comparison

DR 5-105(G) provides that, except as permitted in subsections DR 5-105(D) and (F)—i.e., with disclosure and consent in the case of former-client conflicts or current-client likely conflicts—no other member of a lawyer’s firm may accept or continue employment that a lawyer is required to decline or from which a lawyer must withdraw under a DR. However, unlike MR 1.10(a), DR 5-105(G) provides an exception for this imputed disqualification. Specifically, if the lawyer is required to decline or terminate the subject employment due to any of the following reasons, other lawyers in the firm are permitted to continue or accept the employment: the lawyer’s mental or physical incapacity, DR 2-110(B)(3); the lawyer’s relationship to another lawyer as parent, child, sibling, spouse, or domestic partner, DR 5-101(A)(2); the likelihood of the lawyer’s being called as a witness on behalf of the client, DR 5-102(A); or the lawyer’s sexual relations with the client, DR 5-110.

DR 5-105(H) states, “[w]hen a lawyer terminates the lawyer’s association in a firm, neither the lawyer nor any firm member with which the terminating lawyer subsequently becomes affiliated shall accept or continue employment prohibited by DR 5-105(C) through (G),” i.e., the conflict-of-interest DRs. DR 5-105(I) explains that DR 5-105(H)’s prohibition does not apply if the disqualified attorney is properly screened at her or his new firm and articulates the screening procedures. [See 1.9:310.] The MRs permit screening of disqualified lawyers in much more limited circumstances.

DR 5-105(J) is substantively similar to MR 1.10(b).

1.10:102      Model Code Comparison

MC DR 5-105(D) is broader than DR 5-105(G) in that the ABA Model Code provides that “[i]f a lawyer is required to decline employment or to 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,” without the exceptions articulated in the Oregon counterpart. The ABA Model Code does not speak to the permissibility of “screening” the disqualified lawyer at the new firm.

1.10.103      Definition of "Firm"

DR 10-101(A) reads: “‘Firm member’ or ‘member of a firm’ means a partner, a shareholder, an associate, or a lawyer serving as ‘Of Counsel’. Any other lawyer, including an office sharer or a lawyer working for or with a firm on a limited basis, is not a ‘firm member’ or ‘member of a firm’ absent indicia sufficient to establish a de facto law firm among the lawyers involved.” This definition is sufficiently broad to include all attorneys who work together, whether in a partnership, employer-employee, or independent contractor relationship. See also OSB Legal Ethics Op Nos 1991-120, 1991-114, 1991-50. Under this definition of “firm,” attorneys who share offices and who do not take adequate steps to, among other things, secure their individual clients’ confidences and secrets will be regarded as one firm for conflict-of-interest purposes. OSB Legal Ethics Op No 1991-50.

1.10:200   Imputed Disqualification Among Current Affiliated Lawyers

Primary OR References: DR 5-105(G)
Background References: ABA Model Rule 1.10(a), Other Jurisdictions
Commentary: ABA/BNA § 51:2001, ALI-LGL § 123, Wolfram § 7.6
OR Commentary: EOL §§ 12.19-.22

DR 5-105(G) generally prohibits all attorneys in a firm from undertaking or continuing a representation if any one of them is so prohibited, subject to four exceptions. See also 1.10:101.

1.10:300   Removing Imputation by Screening

Primary OR References: DR 5-105(H)-(I)
Background References: ABA Model Rule 1.10, Other Jurisdictions
Commentary: ABA/BNA § 51:2001, ALI-LGL § 124, Wolfram § 7.6
OR Commentary: EOL § 12.21

(A) Attorneys

DR 5-105(H) applies only when the attorney joining a new firm worked on a matter or acquired confidences or secrets relating to that matter while at the old firm. As OSB Legal Ethics Op No 1991-120 notes, there is no sound reason to limit the future endeavors of an attorney who, by definition, did not work on a matter or acquire confidential information relating to the matter. On the level of the “blackletter” analysis, the clients of the firm that the attorney left would at most be the departing attorney’s former clients under DR 5-105(C) and (D). Since, by hypothesis, the departing attorney did not work on the matter at issue and acquired no confidences or secrets relating to it, the attorney would not be disqualified under the rules governing former-client conflicts.

If, on the other hand, the attorney who is changing firms worked on a matter or acquired confidences or secrets pertaining to that matter while at the old firm, that attorney could not proceed on the other side of the matter at the new firm absent client consent. If the attorney is screened pursuant to DR 5-105(I), however, other attorneys at the new firm would not be disqualified. OSB Legal Ethics Op No 1991-120. Moreover, the ability of the screening option does not depend on client consent or on the consent of the former firm. Id.

(B) Nonattorneys

Because there is no reason to hold nonattorneys who change jobs to a higher standard than attorneys, attorneys clearly must be able to hire nonattorney personnel from other firms, notwithstanding potential conflicts, as long as the standards contained in DR 5-105(I) are met. Similarly, and just as with attorneys, there should be no limitation on hiring nonattorney employees when those employees did not work substantively on, or acquire confidences or secrets regarding, a matter while working for the former employer. OSB Legal Ethics Op Nos 1991-120, 1991-44.

1.10:400   Disqualification of Firm After Disqualified Lawyer Departs

Primary OR References: DR 5-105(J)
Background References: ABA Model Rule 1.10(b), Other Jurisdictions
Commentary: ABA/BNA § 51:2008, ALI-LGL § 124, Wolfram § 7.6.3
OR Commentary: EOL § 12.22

DR 5-105(J) provides: “When a lawyer has terminated an association with a firm, the firm is not prohibited by reason of the formerly associated lawyer’s work from thereafter representing a person in a matter adverse to a client that was represented by the formerly associated lawyer unless one or more of the lawyers remaining at the firm would be disqualified pursuant to DR 5-105(C) or unless the closed file or other confidential information remains at the firm and consent is not obtained pursuant to DR 5-105(D).”

OSB Legal Ethics Op No 1991-128 construes DR 5-105(J) to mean that a firm that still has the former client’s file in such circumstances can avoid disqualification by surrendering the file to the former client. Similarly, any confidential information in the firm’s electronic databases or other in-house systems must be purged.

1.10:500   Client Consent

Primary OR References: DR 5-105(D)
Background References: ABA Model Rule 1.10(c), Other Jurisdictions
Commentary: ABA/BNA § 51:2001, ALI-LGL § 122, Wolfram §§ 7.2, 7.3
OR Commentary: EOL §§ 12.6, 12.17

DR 5-105(D) and (F) expressly permit a waiver of some conflicts of interest if the client consents after full disclosure. “Full disclosure” is defined at DR 10-101(B)(1) as “an explanation sufficient to apprise the recipient of the potential adverse impact on the recipient, of the matter to which the recipient is asked to consent.” DR 10-101(B)(2) provides that, as used in DR 5-105, “full disclosure” also includes “a recommendation that the recipient seek independent legal advice to determine if consent should be given and shall be contemporaneously confirmed in writing.” See also OSB Legal Ethics Op Nos 1991-120, 1991-17, 1991-11. Full disclosure must be made to, and consent obtained from, both the current client and the former client.