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Ezel / Ethics Opinions / DCBAR
DCBAR April 2002

When a lawyer moves to a new firm, what client information can the lawyer reveal so the new firm can run a conflicts check without the former client's consent?

Short answer: The opinion concludes that, without client consent, a moving lawyer may reveal only information that is neither a 'confidence' (privileged) nor a 'secret' under Rule 1.6, but that in most cases the general information a conflicts check needs (client names and the general subject matter of representations) is not protected, so an adequate check can usually be run; where the client's identity or the subject matter is itself sensitive, the lawyer must use techniques that avoid disclosing protected information or obtain consent.

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This page answers the general question as of 2002. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 2002
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

Opinion 312 (adopted April 2002) builds on Opinion 273 and addresses what client information a lawyer may reveal to a prospective new firm so the firm can check for conflicts before the lawyer joins. The governing rule is Rule 1.6: without consent, a lawyer may not reveal a client's "confidences" (information protected by the attorney-client privilege) or "secrets" (other information gained in the representation that the client asked be held inviolate, or whose disclosure would be embarrassing or likely detrimental). The opinion notes the D.C. definition is narrower than the ABA Model Rule's "information relating to the representation."

The Committee first explains why the conflicts a moving lawyer carries are themselves narrow. Under Rule 1.10(b), the new firm is disqualified only where the moving lawyer "in fact acquired information protected by Rule 1.6 that is material to the matter," and only as to clients the lawyer personally worked on, not every client of the old firm and not conflicts that applied to the lawyer at the old firm only by the imputation of Rule 1.10(a). This narrower test reflects the policy favoring lawyer mobility expressed in Comment [10] to Rule 1.10.

Applying Rule 1.6, the opinion concludes that in most cases the general information needed to run a check (the client name and the general subject matter of a representation) is neither privileged nor a secret, so the lawyer may disclose it without consent; information that has become generally known (for example, a widely reported lawsuit) is not a secret. But some facts (that a client is contemplating a takeover, or consulted a divorce or criminal lawyer) can be sensitive enough that, absent a waiver, they may not be disclosed even to check conflicts, and there is no Rule 1.6 exception permitting disclosure of protected information for conflict-checking. The opinion offers practical techniques drawn from New York State Bar Opinion 720: compare only client names and general subject matter; give the client name without the sensitive subject matter; name the adverse parties instead of the client; or provide an unlabeled list of names. The lawyer must err on the side of protecting information when any doubt exists.

In practice

Under the D.C. rules as they stood at the time of the opinion, the opinion concludes a moving lawyer may, without the former client's consent, reveal information for a conflicts check only if it is neither a privileged confidence nor a secret under Rule 1.6, and that the general information a check usually needs (names and general subject matter) is typically not protected. It treats information that has become generally known as no longer a secret.

The opinion describes the conflict-checking obligation as narrow under Rule 1.10(b) (actual material protected information, as to clients the lawyer personally worked on) and suggests staged-disclosure techniques for sensitive matters, while stressing that no Rule 1.6 exception allows revealing protected information just to check or seek a waiver of a conflict. Because the opinion predates later rule developments, verify the current D.C. rules before relying on any specific requirement.

Common questions

Q: What can a lawyer tell a prospective new firm to check conflicts?

A: The opinion concludes the lawyer may reveal information that is neither privileged nor a "secret," which usually includes the client name and the general subject matter of a representation; that is normally enough to run a reliable check.

Q: Does the lawyer need the former clients' consent to disclose this?

A: The opinion concludes consent is required only where the information is actually protected. There is no Rule 1.6 exception permitting disclosure of confidences or secrets for conflict-checking, so the lawyer needs consent (or a non-disclosing technique) only when the information is a confidence or a secret.

Q: What if the client's identity or the matter is itself sensitive?

A: The opinion concludes that sensitive facts (such as a contemplated takeover, or that a client consulted a divorce or criminal lawyer) may be secrets that cannot be disclosed without waiver, and it suggests techniques like naming adverse parties instead of the client, or supplying an unlabeled list of names, to check the conflict without revealing protected information.

Q: Which conflicts does a lawyer actually carry to a new firm?

A: The opinion concludes that under Rule 1.10(b) only matters the lawyer personally worked on, and in which the lawyer actually acquired material protected information, count; conflicts that were imputed to the lawyer at the old firm under Rule 1.10(a) do not move with the lawyer.

Background and rules framework

The opinion interprets D.C. Rule 1.6 (confidences and secrets), distinguishing the narrower D.C. definition from the ABA Model Rule, together with Rule 1.10(b) (the test for disqualifying a firm a lawyer joins) and Rule 1.9 (former-client conflicts). It draws on the "substantially related" analysis of T.C. Theatre Corp. v. Warner Brothers Pictures and on the policy favoring lawyer mobility in Comment [10] to Rule 1.10. It builds on prior D.C. Opinions 273 and 265 and adopts practical approaches from New York State Bar Opinion 720.

Citations and references

Rules of Professional Conduct:

  • D.C. RPC 1.6 / Model Rule 1.6 (confidentiality; D.C. "confidences" and "secrets")
  • D.C. RPC 1.10(b) / Model Rule 1.10 (imputation; test for a firm a lawyer joins)
  • D.C. RPC 1.9 / Model Rule 1.9 (duties to former clients)

Cases:

  • T.C. Theatre Corp. v. Warner Brothers Pictures, 113 F. Supp. 265 (S.D.N.Y. 1953) (the "substantially related" test)
  • Brown v. District of Columbia Board of Zoning Adjustment, 486 A.2d 37 (D.C. 1984) (en banc) (substantial-relationship test for former government employees)
  • Evans v. Atwood, 177 F.R.D. 1 (D.D.C. 1997) (scope of the attorney-client privilege)

Other opinions cited:

  • D.C. Ethics Opinions 83, 128, 227, 246, 265, 273
  • New York State Bar Opinion 720 (1999)

See also

Source

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