How far back does a law firm have to check its former clients when running a conflict-of-interest check?

Plain-English summary

A law firm founded in 1996, handling about 500 matters a year, was converting to new conflicts-checking software and asked how far back in time a lawyer must look to determine whether representing a current client creates a conflict, that is, whether the firm has previously represented a client who may be adverse to the current one, and effectively how many former clients should be carried over into the new system. The committee said the facts resembled those of Informal Opinion 1663.

The committee said that under RPC 1.9, once an attorney has a conflict, that conflict continues indefinitely. Under RPC 1.10, a firm must check for conflicts as far back as each of its attorneys has been in practice. Subject to the limitations in RPC 1.10(c), after an attorney who has a conflict of interest has left a firm, the firm may then represent a person with interests materially adverse to those of the formerly associated attorney. The committee also pointed to Rule for Enforcement of Lawyer Conduct 1.4 for the point that there is no statute of limitations.

Currency note

This opinion was issued in 2005, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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 mentioned here.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee gave no fixed lookback period for conflict checking. Because RPC 1.9 makes a conflict last indefinitely, and RPC 1.10 imputes a lawyer's conflicts across the firm, the committee said a firm must be able to check conflicts as far back as each of its lawyers has practiced. It identified one narrowing path: once a conflicted lawyer leaves, RPC 1.10(c) may free the firm to take a matter adverse to that lawyer's former client. The committee tied the no-time-limit conclusion to the enforcement rule's lack of a statute of limitations.

Common questions

Q: How far back must a firm check its former clients for conflicts?

A: The committee said as far back as each of its attorneys has been in practice, because under RPC 1.10 a lawyer's conflicts are imputed to the firm and under RPC 1.9 a conflict lasts indefinitely.

Q: Is there a time limit or statute of limitations?

A: The committee said no. It cited the Rule for Enforcement of Lawyer Conduct 1.4 for the absence of a statute of limitations.

Q: What happens after a conflicted lawyer leaves the firm?

A: The committee said that, subject to RPC 1.10(c), the firm may then represent a person with interests materially adverse to those of the formerly associated attorney's client.

Background and rules framework

The opinion interprets RPC 1.9 (Model Rule 1.9, duties to former clients) and RPC 1.10 (Model Rule 1.10, imputation of conflicts within a firm, including the RPC 1.10(c) provision on a departed lawyer). It relies on Informal Opinion 1663 and on the Rule for Enforcement of Lawyer Conduct 1.4. The analysis turns on the indefinite duration of a former-client conflict and on imputation across every lawyer in the firm.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.9 / Washington RPC 1.9 (duties to former clients; conflict continues indefinitely)
• Model Rule 1.10 / Washington RPC 1.10, 1.10(c) (imputation of conflicts; departed lawyer)

Other authority:

• Rule for Enforcement of Lawyer Conduct (RELC) 1.4 (no statute of limitations)
• WSBA Informal Opinion 1663 (similar facts on the conflict-checking lookback)

See also

• WSBA Ethics Op. 1022: Imputed Disqualification of a Lateral Lawyer
• WSBA Ethics Op. 1159: Imputed Disqualification and a Former Firm
• WSBA Ethics Op. 1432: Imputed Disqualification, Former Partners

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1336

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 2097
Year Issued: 2005
RPC(s): RPC 1.9, 1.10, RELC 1.4
Subject: Length of time a lawyer must maintain records for checking conflicts of interest

The inquirer wrote the committee and stated the purpose of this letter is to ask for an opinion from the Committee with regard to how far back in time a lawyer must look to determine whether there is a conflict of interest in representing a current client, to determine if the firm has previously represented a client which may be adverse to that current client.

The inquiring law firm was founded in 1996. It handles approximately 500 matters per year. It is converting to a new conflicts checking software and the inquiry essentially asks how many of its former clients should be transferred from its existing conflicts system to the new one.

The facts presented in this inquiry appear to be similar to those of Informal Opinion 1663. The Committee discussed the inquiry regarding how far back in time a lawyer must look to determine whether there is a conflict of interest. The Committee has determined that under RPC 1.9, once an attorney has a conflict that conflict continues indefinitely. Under RPC 1.10, it is necessary for a firm to check for conflicts as far back as each of its attorneys have been in practice. Subject to the limitations in 1.10(c), after an attorney who has a conflict of interest has left a firm, that firm may then represent a person with interests materially adverse to those of the formerly associated attorney. See also Rule for Enforcement of Lawyer Conduct 1.4 (No statute of limitations).