Can a firm take a matter against a former client once all the lawyers who handled that client have left the firm?

Plain-English summary

Opinion 212 (approved May 15, 1990) addressed a law firm that had represented a "First Client" (the general contractor on a large overseas military construction project) from 1983 to late 1987. In October 1987 a long-time firm client ("Second Client") became a major subcontractor on the project and asked the firm to represent it, with First Client's written, conditional consent. By November 1987 both partners who had handled First Client's work had left for another firm, taking all of First Client's files; the firm thereafter ceased representing First Client entirely. When disputes later arose between First Client and Second Client, First Client demanded that the firm withdraw from representing Second Client. The firm represented that no remaining lawyer held any of First Client's confidences or secrets, nor any related files.

Under the law in effect, the committee concluded that, although the firm's representation of Second Client was materially adverse to First Client and substantially related to the prior representation, the firm was not disqualified, because no one remaining at the firm had or could access First Client's material confidences or secrets. That conclusion tracked ABA Model Rule 1.10(b), which disqualifies the firm only where the matter is substantially related and a remaining lawyer holds material protected information. Because the second predicate was absent, the representation was proper. The committee also concluded the conditions in First Client's 1987 consent no longer raised ethical concerns, because they rested on an assumption (that someone at the firm would still hold relevant confidences) that was no longer true.

The committee then addressed new D.C. Rule 1.10(c), effective January 1, 1991, which the Jordan Committee had deliberately drafted in the disjunctive: it disqualifies the firm if the matter is substantially related or a remaining lawyer holds material protected information. By its terms the new rule would bar the firm's continued representation. But, reading the Court of Appeals' effective-date order and recognizing that bar members could not be charged with knowledge of the complex new rules before they took effect, the committee concluded the new rule should not be applied to require the firm to resign. More broadly, it held that a lawyer-client relationship formed and proper before January 1, 1991 should not be abruptly terminated by the new Rules.

Currency note

The D.C. Bar flags Opinion 212 as having been substantively affected by the amendments to the D.C. Rules of Professional Conduct that became effective February 1, 2007.

This opinion was issued in 1990, before the District of Columbia's adoption of the 2007 revisions to the Rules of Professional Conduct, and addressed the transition to the Rules that took effect January 1, 1991. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could the firm represent the subcontractor against its former client, the general contractor?

A: Yes, under the law then in effect. The committee concluded the firm was not disqualified, because no remaining lawyer held or could access the former client's material confidences or secrets, even though the matters were substantially related.

Q: Did it matter that all the lawyers who had served the former client left the firm?

A: Yes. The committee concluded that their departure, taking the files and leaving no material confidences behind, was what allowed the firm to continue the adverse representation.

Q: Did the new Rule 1.10(c) change the result?

A: Going forward, potentially. The committee noted the new disjunctive rule would bar such representation, but concluded it should not be applied to force the firm to resign from a relationship that was proper when it began.

Q: How does D.C. Rule 1.10(c) differ from the ABA Model Rule?

A: The committee explained that the D.C. rule is disjunctive (substantial relationship or remaining confidences), making it stricter than the ABA's conjunctive Model Rule 1.10(b), a deviation the Jordan Committee adopted deliberately.

Background and rules framework

The opinion was decided under the former Code's DR 4-101 and DR 5-105, and analyzed the incoming D.C. Rule 1.10(c) (imputed disqualification). Under the prior law and ABA Model Rule 1.10(b), a firm is disqualified from a matter adverse to a former client of a departed lawyer only where the matter is substantially related and a remaining lawyer holds material protected information. D.C. Rule 1.10(c), the committee explained, was deliberately drafted in the disjunctive by the Jordan Committee to forbid such representation whenever the matter is substantially related, to avoid the "unseemly spectacle" of a firm switching sides after the responsible lawyers leave. The committee read these against Rule 1.9 on duties to former clients.

Citations and references

Rules of Professional Conduct and Code provisions:

• D.C. RPC 1.10(c) / Model Rule 1.10 (imputed disqualification; D.C.'s stricter disjunctive form)
• D.C. RPC 1.9 / Model Rule 1.9 (duties to former clients)
• Former Code DR 4-101 (confidences and secrets) and DR 5-105 (declining or continuing employment)

Cases:

• United States Football League v. National Football League, 605 F. Supp. 1448 (S.D.N.Y. 1985), illustrating the substantial-relationship analysis

See also

• DC Ethics Op. 227: Migratory Paralegals, Imputed Disqualification, and Screening
• DC Ethics Op. 273: Lawyers Moving From One Private Law Firm to Another
• DC Ethics Op. 279: Screening as a Cure for Imputed Disqualification

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-212