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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.

Delaware Legal Ethics

1.10 Rule 1.10 Imputed Disqualification: General Rule

1.10:100 Comparative Analysis of Delaware Rule

1.10:101 Model Rule Comparison

DLRPC 1.10 differs from Model Rule 1.10. DLRPC 1.10(a) states, “(a) Except as otherwise provided in this rule, while lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 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.” Model Rule 1.10 does not include the above underlined clauses. Likewise, there is no equivalent to DLRPC 1.10(c) in Model Rule 1.10. DLRPC 1.10(c) (“When a lawyer becomes associated with a firm, no lawyer associated in the firm shall knowingly represent a client in a matter in which that lawyer is disqualified under Rule 1.9 unless: (1) the personally disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to the affected former client.”). Model Rule 1.10 does not authorize screening a disqualified lawyer. Lastly, DLRPC 1.10(e) has no counterpart in Model Rule 1.10. DLRPC 1.10(e) (“The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.”).

1.10:102 Model Code Comparison

DR-105(D) states that “[i]f a lawyer is required to decline 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.”

1.10.103 Definition of Firm

Comment [1] defines a firm as “lawyers in a law partnership, professional corporation, sole proprietorship, or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization.” DLRPC 1.10 cmt. 1.

1.10:200 Imputed Disqualification Among Current Affiliated Lawyers

In Bowden v. Kmart Corp., the lawyer’s disqualification was not imputed to her firm because Kmart did not move to disqualify the lawyer in a similar action against Kmart, and the “motion to disqualify was not filed until approximately 15 months after the commencement” of the action at bar “and less than a week before Arbitration.” The Court concluded the prejudice to the defendant, and the possibility that the motion was filed for strategic purposes outweighed the “factors favoring disqualification of the entire firm.” Bowden v. Kmart Corp., 1999 Del. Super. Ct. Lexis 423 (May 28, 1999).

A partner of a law firm is prohibited from appearing before his wife, a judge in State Court. See DLRPC 8.4(f); Judicial Canon 3.C(1)(d)(ii). Yet, the partner’s conflict is not imputed to the firm. Del. Ethics Opinion 2 (1999).

Several firms entered into a “joint-defense agreement” with two firms that were privy to plaintiffs’ potentially confidential and privileged information. The plaintiffs moved to disqualify the firms from defending directors and/or officers of the plaintiffs’ entities. The “contested firms pointed out that their clients would have been privy to all the information the contested firms received” because the clients were directors and/or officers of the entities. The court decided that none of the information exchanged was “necessarily privileged or particularly important from a fairness perspective to Plaintiffs’ litigation position.” The court determined that even if two firms might have a conflict of interest, this conflict was not imputed to all of the firms that entered into a “joint-defense agreement” because privileged information was not exchanged.

IMC Global, Inc. v. Moffet, 1998 Del. Ch. Ct. LEXIS 224 ( November 12, 1998).

An attorney in the Public Defender's Office was required to withdraw in an earlier and unrelated phase of the case because of ineffective assistance of counsel. The Public Defender’s Office was not barred from researching and briefing an appeal for the same case as long as the particular public defender did not personally participate in the appeal. The issues were different on appeal. The dissent argued that since the public defender was required to withdrawal due to ineffective assistance of counsel, the Public Defender’s Office could not appeal the defendant’s conviction. The Supreme Court adopted the dissent by Order of October 29, 1986. Del. Ethics Opinion 2 (1986).

1.10:300 Removing Imputation by Screening

In Nemours Foundation v. Gilbane, Aetna, Fed. Ins. Co., the Court held that “an appropriate screening mechanism, in the proper circumstances, may rebut the presumption of shared confidences that arises under Rule 1.10 in cases where the disqualified attorney’s conflict of interest originated in private practice.” Nemours Foundation v. Gilbane, Aetna, Fed. Ins. Co., 632 F. Supp. 418, 428 (D. Del. 1986). The Court referred to the screening method as a “cone of silence.” Id. at 421-431. The Court considered certain objective factors coupled with “subjective reliance on the Rules” to determine if the attorney implemented an appropriate “cone of silence.” Id. at 428-429. These factors are: (1) “the timing and physical characteristics of the screening,” (2) evidence of ‘faithfulness’ to Rule 1.6 (Confidentiality), (3) the size of the firm, and (4) “the nature of prior involvement of the tainted attorney and the extensiveness of the screening.” Id. See also Freel v. Cason, 2000 Del. Fam. Ct. LEXIS 109 (May 15, 2000) citing Nemours Foundation, 632 F. Supp 418 (D. Del. 1986) (Nemours Foundation “held that a law firm would not be disqualified from representing a client where a newly hired attorney of the firm had previously represented, in a limited capacity, an adverse party to the firm’s client in the same case in which the hiring firm represented its client, so long as a screening process, called a “cone of silence, was implemented.” In Freel, a non-lawyer working on the case was separated and prohibited from speaking to those not working on the case at issue. Those not working on the case were also prohibited from talking to the non-lawyer about the case. The Court found that the client’s confidences would be “honored and protected” due to the implementation of the “cone of silence.”); McClintock v. McClintock, 1999 Del. Fam. Ct. LEXIS 139 (August 15, 1999) (The client (wife) requested that Ms. Kerr withdraw as counsel for her husband because Janine L. Howard, an associate recently hired by Ms. Kerr’s firm, formerly represented wife when Ms. Howard worked at the Delaware Volunteer Legal Services (DVLS). The Court cited Nemours Foundations and balanced the circumstances of the representation. The Court concluded that wife’s confidentiality interests were protected because of: (1) Ms. Howard’s limited representation of wife and minimum recollection of the facts related to the case; (2) Ms. Kerr’s long involvement with the case; and (3) the fact that Ms. Howard and Ms. Kerr immediately offered to establish a “cone of silence.” The Court refused to disqualify Ms. Kerr from representing husband.). Id.

A law student clerked for a firm while in law school, which was handling a group of related cases. The former law student accepted employment with a firm that was representing some of the defendants sued by plaintiffs in this group of related cases. The law clerk was disqualified from working on files that she worked on at the former firm. The new firm was disqualified as to the files the law clerk worked on while at the former firm, except in the instances in which the firm isolated the former law clerk. Del. Ethics Opinion 1 (1986).

1.10:400 Disqualification of Firm After Disqualified Lawyer Departs

The lawyer’s former firm represented Deemer Steel Casting Company (“Deemer”). Deemer claims that the lawyer, Jeffrey M. Weiner, acquired “relevant confidential information concerning Deemer.” Deemer brought an action against East Coast Erectors. While employed at another firm, Weiner represented East Coast against Deemer. Deemer sought to disqualify Weiner from representing East Coast pursuant to DLRPC 1.10. The court noted that the lawyer bears the burden of proof of rebutting the presumption that he obtained disqualifying confidential information. In this case, the partners at the former firm, who were primarily responsible for the Deemer bankruptcy matter, could not testify that Weiner participated in any part of the prior representation of Deemer. Weiner testified that he was not privy to the Deemer confidential information. There was uncontrovered evidence that Weiner did not obtain confidential information, therefore Weiner was not disqualified from representing East Coast. Deemer Steel Casting Co. v. East Coast Erectors, Inc. 1990 Del. Ch. Ct. LEXIS 147 (July 30, 1990).

1.10:500 Client Consent

Two lawyers employed by the Office of the Wilmington City Solicitor inquired whether they could represent opposing clients, those being the Trial Board and the Police Office of Professional Standards (OPS), in the same police officer disciplinary hearing. Under 1.10(a), “[w]hile lawyers are associated in a firm, none of them shall knowingly represent a client when anyone of them practicing alone would be prohibited from doing so by rules 1.7, 1.8(c), 1.9, or 2.2.” DLRPC 1.10(a). The Committee concluded that under DLRPC 1.10, the Office of Wilmington City Solicitor is a firm. Therefore, these representations would be precluded because DLRPC 1.7(b) forbids one of the lawyers from representing these two agencies in the same proceeding. A single lawyer would not be able to give impartial advice to the Trial Board, and simultaneously act as an advocate to the Police Office of Professional Standards. Also, one of lawyers may owe a duty to the police officer. This conflict cannot be cured by obtaining client consent. Del. Ethics Opinion 1 (2003).