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.
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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.
Texas Legal Ethics
1.10:100 Comparative Analysis of Texas Rule
In Model Rule 1.10, "Imputed Disqualification: General Rule," the Model Rules set forth a free-standing rule dealing with imputed disqualification issues. Rule 1.10 of the Model Rules incorporates by reference and addresses several others rules (e.g., Model Rules 1.7, 1.8(c), 1.9, and 2.2). The Texas Rules, by contrast, do not contain a free-standing, separate rule regarding imputed disqualification issues. Rather, imputed disqualification issues are addressed in the context of certain Texas Rules. These rules include Texas Rules 1.06(f), 1.07(e), 1.08(i), 1.09(b)&(c), and 1.10(b). The imputed disqualification issues presented by these listed Texas rules will be addressed in the context of the discussion of each rule.
As noted in 1.10:101, the Texas Rules, unlike the Model Rules, do not contain a free-standing, separate rule on imputed disqualification issues. Please see 1.10:101 for further discussion and references regarding this subject.
For the Texas Rules' definition of "firm," see 0.4:430.
1.10:200 Imputed Disqualification Among Current Affiliated Lawyers
Imputed disqualification deals with the question whether a particular lawyer's disqualification to act as counsel for a client in a particular matter extends to other lawyers with whom the lawyer is professionally associated. The Texas Rules do not contain a rule directly analogous to Model Rule 1.10. That is, Texas does not have a free-standing rule addressing imputed disqualification. Rather, individual Texas rules dealing with conflicts (e.g., Texas Rule 1.09, dealing with former client conflicts, and Texas Rule 1.06, the general conflict of interest rule) address imputed disqualification issues in the context of the particular rule. Texas Rule 1.06, "Conflict of Interest: General Rule," addresses conflicts of interest involving current clients. The Rule is discussed in greater depth at 1.7:100-1.7:500. Subparagraph (f) of Texas Rule 1.06 provides that, "[i]f a lawyer would be prohibited" by Texas Rule 1.06 from "engaging in particular conduct, no other lawyer while a member or associated with that lawyer's firm may engage in that conduct." Texas Rules Rule 1.06(f).
1.10:300 Removing Imputation by Screening
1.10:400 Disqualification of Firm After Disqualified Lawyer Departs
Texas Rules Rule 1.09, "Conflict of Interest: Former Client," is addressed in some depth at 1.9:100-1.9:400. Much like Texas Rules Rule 1.06, "Conflict of Interest: General Rule," Texas Rule 1.09 contains a provision regarding imputed disqualification: except in situations involving lawyers who have left governmental practice, "when lawyers are or have become members of or associated with a firm, none of them shall knowingly represent a client if any one of them practicing alone would be prohibited from doing so by" paragraph (a) of Rule 1.09. See Texas Rules Rule 1.09(b). (It will be remembered that paragraph (a) of Rule 1.09 essentially provides that, in the absence of client consent, a lawyer who personally has formerly represented a client in a matter shall not thereafter represent another person in a matter adverse to the former client if it is the same or a substantially related matter, if the representation and reasonable probability will involve a violation of the rule protecting client confidences (i.e., Texas Rule 1.05), or if it is a matter in which such other person questions the validity of the lawyer's services or work product for the former client. See Texas Rules Rule 1.09(a).)
Rule 1.09 in paragraph (c) further provides as follows:
When the association of a lawyer with a firm has terminated, the lawyers who were then associated with that lawyer shall not knowingly represent a client in a matter adverse to a former client if
• the representation and reasonable probability would involve a violation of the rule protecting client confidences with respect to the former client, or
• if they would be called upon to question the validity of the work product of the departed lawyer for the former client.
Official comment 6 to Texas Rule 1.09 explains the application of this provision as follows:
Paragraph (c) addresses the situation of former partners or associates of a lawyer who once had represented a client when the relationship between the former partners or associates and the lawyer has been terminated. In that situation, the former partners or associates are prohibited from questioning the validity of such lawyer's work product and from undertaking representation which in reasonable probability will involve a violation of Rule 1.05. Such a violation could occur, for example, when the former partners or associates retained materials in their files from the earlier representation of the client that, if disclosed or used in connection with the subsequent representation, would violate Rule 1.05(b)(1) or (b)(3).
Comment 7 thus concludes:
Thus the effect of paragraph (b) is to extend any inability of a particular lawyer under paragraph (a) to undertake a representation against a former client to all other lawyers who are or become members of or associated with any firm in which that lawyer is practicing. If, on the other hand, a lawyer disqualified by paragraph (a) should leave a firm, paragraph (c) prohibits lawyers remaining in that firm from undertaking a representation that would be forbidden to the departed lawyer only if that representation would violate subparagraphs (a)(1) or (a)(2). Finally, should those other lawyers cease to be members of the same firm as the lawyer affected by paragraph (a) without personally coming within its restrictions, they thereafter may undertake the representation against the lawyer's former client unless prevented from doing so by some other of these Rules.
Texas Rules Rule 1.09 cmt. 7; see also Texas Ethics Opinion 501 (Apr. 12, 1994) (discussing these issues).
1.10:500 Client Consent
Texas Rule 1.09, "Conflict of Interest: Former Client," includes a provision regarding imputed disqualification. For further discussion of that provision, see 1.10:400 as well as 1.10:200. Official comment 10 to Rule 1.09 recognizes: "This Rule is primarily for the protection of clients and its protections can be waived by them." Texas Rules Rule 1.09 cmt. 10. Likewise, Texas Rule 1.06, "Conflict of Interest: General Rule," recognizes that a client can consent to a representation that would otherwise violate the conflict of interest rule if such consent is provided after sufficient disclosure. See Texas Rules Rule 1.06(c)(2) and cmts. 7-11.