Print Version
Previous PageFile uploaded: 11/2/2017

Rule 1.10. Imputation of Conflicts of Interest: General Rule.

(a) While lawyers are associated in a firm, none of them shallknowingly represent a client when any one of them practicing alone would beprohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is basedon a personal interest of the prohibited lawyer and does not present asignificant risk of materially limiting the representation of the client by theremaining lawyers in the firm.

(b) When a lawyer has terminated an association with a firm, thefirm is not prohibited from thereafter representing a person with interestsmaterially adverse to those of a client represented by the formerly associatedlawyer and not currently represented by the firm, unless:

(b)(1) thematter is the same or substantially related to that in which the formerlyassociated lawyer represented the client; and

(b)(2) anylawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c)that is material to the matter.

(c) When a lawyer becomes associated with a firm, no lawyerassociated in the firm shall knowingly represent a person in a matter in whichthat lawyer is disqualified under Rule 1.9 unless:

(c)(1) thepersonally disqualified lawyer is timely screened from any participation in thematter and is apportioned no part of the fee therefrom, and

(c)(2) writtennotice is promptly given to any affected former client.

(d) A disqualification prescribed by this Rule may be waived bythe affected client under the conditions stated in Rule 1.7.

(e) The disqualification of lawyers associated in a firm withformer or current government lawyers is governed by Rule 1.11.

(f) An office of government lawyers who serve as counsel to agovernmental entity such as the office of the Utah Attorney General, the UnitedStates Attorney, or a district, county, or city attorney does not constitute a?firm? for purposes of Rule 1.10 conflict imputation.

Comment

Definition of "Firm"

[1] ?Firm,? as used in this rule, is defined in Rule 1.0(d).Whether two or more lawyers constitute a firm for purposes of determiningconflict imputation can depend on the specific facts. See Rule 1.0, Comments[2] - [4].

[1a] Rule 1.10(f) does not appear in the ABA Model Rules. It isintended to recognize the inherent differences between an office of governmentlawyers and those in a firm, as defined in Rule 1.0(d). Notwithstanding theexclusion of an office of government lawyers from the provisions of Rule 1.10,all other conflicts rules, such as Rules 1.7, 1.8, and 1.11, must be fully satisfiedon an individual-lawyer basis, and the group of government attorneys must, byadopting appropriate procedures, ensure that attorneys for whom there areindividual conflict issues do not participate in and are screened from theparticular representation. See Rule 1.0(l) for definition of ?screened.?

Principles of Imputed Disqualification

[2] The rule of imputed disqualification stated in paragraph (a)gives effect to the principle of loyalty to the client as it applies to lawyerswho practice in a law firm. Such situations can be considered from the premisethat a firm of lawyers is essentially one lawyer for purposes of the rulesgoverning loyalty to the client, or from the premise that each lawyer isvicariously bound by the obligation of loyalty owed by each lawyer with whomthe lawyer is associated. Paragraph (a) operates only among the lawyerscurrently associated in a firm. When a lawyer moves from one firm to another,the situation is governed by Rules 1. 9(b) and 1.10(b).

[3] The rule in paragraph (a) does not prohibit representationwhere neither questions of client loyalty nor protection of confidentialinformation are presented. Where one lawyer in a firm could not effectivelyrepresent a given client because of strong political beliefs, for example, butthat lawyer will do no work on the case and the personal beliefs of the lawyerwill not materially limit the representation by others in the firm, the firmshould not be disqualified. On the other hand, if an opposingparty in a case were owned by a lawyer in the law firm, and others inthe firm would be materially limited in pursuing the matter because of loyaltyto that lawyer, the personal disqualification of the lawyer would be imputed toall others in the firm.

[4] The rule in paragraph (a) also does not prohibitrepresentation by others in the law firm where the person prohibited frominvolvement in a matter is a nonlawyer, such asa paralegal or legal secretary. Nor does paragraph (a) prohibit representationif the lawyer is prohibited from acting because of events before the personbecame a lawyer, for example, work that the person did while a law student.Such persons, however, ordinarily must be screened from any personalparticipation in the matter to avoid communication to others in the firm ofconfidential information that both the nonlawyers andthe firm have a legal duty to protect. See Rules 1.0(m) and 5.3.

[5] Rule 1.10(b) operates to permit a law firm, under certaincircumstances, to represent a person with interests directly adverse to thoseof a client represented by a lawyer who formerly was associated with the firm.The Rule applies regardless of when the formerly associated lawyer representedthe client. However, the law firm may not represent a person with interestsadverse to those of a present client of the firm, which would violate Rule 1.7.Moreover, the firm may not represent the person where the matter is the same orsubstantially related to that in which the formerly associated lawyerrepresented the client and any other lawyer currently in the firm has materialinformation protected by Rules 1.6 and 1.9(c).

[5a] The Utah rule differs from the ABA Model Rule in allowinglawyers disqualified under Rule 1.9 to be screened from participation in amatter under certain circumstances. If the conditions of paragraph (c) are met,imputation is removed, and consent to the new representation is not required.Lawyers should be aware, however, that courts may impose more stringentconditions in ruling upon motions to disqualify a lawyer from pendinglitigation.

[5b] Requirements for screening procedures are stated in Rule 1.0(m).Paragraph (c)(2) does not prohibit the screened lawyer from receiving a salaryor partnership share established by prior independent agreement, but that lawyermay not receive compensation directly related to the matter in which the lawyeris disqualified.

[5c] Notice, including a description of the screened lawyer'sprior representation and of the screening procedures employed, should be givenas soon as practicable after the need for screening becomes apparent.

[6] Rule 1.10(d) removes imputation with the informed consent ofthe affected client or former client under the conditions stated in Rule 1.7.The conditions stated in Rule 1.7 require the lawyer to determine that therepresentation is not prohibited by Rule 1.7(b) and that each affected clientor former client has given informed consent to the representation, confirmed inwriting. In some cases, the risk may be so severe that the conflict may not becured by client consent. For a discussion of the effectiveness of clientwaivers of conflicts that might arise in the future, see Rule 1.7, Comment[22]. For a definition of informed consent, see Rule 1.0(f).

[7] Where a lawyer has joined a private firm after havingrepresented the government, imputation is governed by Rule 1.11(b) and (c), notthis Rule. Under Rule 1.11(d), where a lawyer represents the government afterhaving served clients in private practice, nongovernmental employment or inanother government agency, former-client conflicts are not imputed togovernment lawyers associated with the individually disqualified lawyer.

[8] Where a lawyer is prohibited from engaging in certaintransactions under Rule 1.8, paragraph (k) of that Rule, and not this Rule,determines whether that prohibition also applies to other lawyers associated ina firm with the personally prohibited lawyer.

 

Effective November 1, 2017