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Rule 1.10. Imputation of Conflictsof Interest: General Rule.

(a) While lawyers areassociated 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 or1.9, unless the prohibition is based on a personal interest of the prohibitedlawyer and does not present a significant risk of materially limiting therepresentation of the client by the remaining lawyers in the firm.

(b) When a lawyer hasterminated an association with a firm, the firm is not prohibited fromthereafter representing a person with interests materially adverse to those ofa client represented by the formerly associated lawyer and not currentlyrepresented by the firm, unless:

(b)(1) the matter is the same orsubstantially related to that in which the formerly associated lawyerrepresented the client; and

(b)(2) any lawyer remaining in the firmhas information protected by Rules 1.6 and 1.9(c) that is material to thematter.

(c) When a lawyerbecomes associated with a firm, no lawyer associated in the firm shallknowingly represent a person in a matter in which that lawyer is disqualifiedunder Rule 1.9 unless:

(c)(1) the personally disqualified lawyeris timely screened from any participation in the matter and is apportioned nopart of the fee therefrom, and

(c)(2) written notice is promptly givento any affected former client.

(d) A disqualificationprescribed by this Rule may be waived by the affected client under theconditions stated in Rule 1.7.

(e) The disqualificationof lawyers associated in a firm with former or current government lawyers isgoverned by Rule 1.11.

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

Comment

Definition of "Firm"

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

[1a] Rule 1.10(f) doesnot appear in the ABA Model Rules. It is intended to recognize the inherentdifferences between an office of government lawyers and those in a firm, asdefined in Rule 1.0(d). Notwithstanding the exclusion of an office ofgovernment 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 satisfied on anindividual-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(o) fordefinition of ?screened.?

Principles of Imputed Disqualification

[2] The rule of imputeddisqualification stated in paragraph (a) gives effect to the principle ofloyalty to the client as it applies to lawyers who practice in a law firm. Suchsituations can be considered from the premise that a firm of lawyers is essentiallyone lawyer for purposes of the rules governing loyalty to the client, or fromthe premise that each lawyer is vicariously bound by the obligation of loyaltyowed by each lawyer with whom the lawyer is associated. Paragraph (a) operatesonly among the lawyers currently associated in a firm. When a lawyer moves fromone firm to another, the situation is governed by Rules 1. 9(b)and 1.10(b).

[3] The rule inparagraph (a) does not prohibit representation where neither questions ofclient loyalty nor protection of confidential information are presented. Whereone lawyer in a firm could not effectively represent a given client because ofstrong political beliefs, for example, but that lawyer will do no work on thecase and the personal beliefs of the lawyer will not materially limit therepresentation by others in the firm, the firm should not be disqualified. Onthe other hand, if an opposing party in a case wereowned by a lawyer in the law firm, and others in the firm would be materiallylimited in pursuing the matter because of loyalty to that lawyer, the personaldisqualification of the lawyer would be imputed to all others in the firm.

[4] The rule inparagraph (a) also does not prohibit representation by others in the law firmwhere the person prohibited from involvement in a matter is a nonlawyer, such as a paralegal or legal secretary. Nor doesparagraph (a) prohibit representation if the lawyer is prohibited from actingbecause of events before the person became a lawyer, for example, work that theperson did while a law student. Such persons, however, ordinarily must bescreened from any personal participation in the matter to avoid communicationto others in the firm of confidential information that both the nonlawyers and the firm have a legal duty to protect.See Rules 1.0(o) and5.3.

[5] Rule 1.10(b)operates to permit a law firm, under certain circumstances, to represent aperson with interests directly adverse to those of a client represented by alawyer who formerly was associated with the firm. The Rule applies regardlessof when the formerly associated lawyer represented the client. However, the lawfirm may not represent a person with interests adverse to those of a presentclient of the firm, which would violate Rule 1.7. Moreover, the firm may notrepresent the person where the matter is the same or substantially related tothat in which the formerly associated lawyer represented the client and anyother lawyer currently in the firm has material information protected by Rules1.6 and 1.9(c).

[5a] The Utah rulediffers from the ABA Model Rule in allowing lawyers disqualified under Rule 1.9to be screened from participation in a matter under certain circumstances. Ifthe conditions of paragraph (c) are met, imputation is removed, and consent tothe new representation is not required. Lawyers should be aware, however, thatcourts may impose more stringent conditions in ruling upon motions todisqualify a lawyer from pending litigation.

[5b] Requirements forscreening procedures are stated in Rule 1.0(o). Paragraph (c)(2) does not prohibit the screened lawyerfrom receiving a salary or partnership share established by prior independentagreement, but that lawyer may not receive compensation directly related to thematter in which the lawyer is disqualified.

[5c] Notice, including adescription of the screened lawyer's prior representation and of the screeningprocedures employed, should be given as soon as practicable after the need forscreening becomes apparent.

[6] Rule 1.10(d) removesimputation with the informed consent of the affected client or former clientunder the conditions stated in Rule 1.7. The conditions stated in Rule 1.7require the lawyer to determine that the representation is not prohibited byRule 1.7(b) and that each affected client or former client has given informedconsent to the representation, confirmed in writing. In some cases, the riskmay be so severe that the conflict may not be cured by client consent. For adiscussion of the effectiveness of client waivers of conflicts that might arisein the future, see Rule 1.7, Comment [22]. For a definition of informedconsent, see Rule 1.0(f).

[7] Where a lawyer hasjoined a private firm after having represented the government, imputation isgoverned by Rule 1.11(b) and (c), not this Rule. Under Rule 1.11(d), where alawyer represents the government after having served clients in privatepractice, nongovernmental employment or in another government agency,former-client conflicts are not imputed to government lawyers associated withthe individually disqualified lawyer.

[8] Where a lawyer isprohibited from engaging in certain transactions under Rule 1.8, paragraph (k)of that Rule, and not this Rule, determines whether that prohibition alsoapplies to other lawyers associated in a firm with the personally prohibitedlawyer.

 

 

Effective May 1, 2019