Opinion 2006-1

(March 2006)

The inquirer is an attorney who has recently resigned from a 20-attorney law firm in Philadelphia ("First Law Firm"). While at the First Law Firm, he represented a client in insurance coverage litigation. He was intimately involved with that matter as its lead counsel in the litigation.

The adverse party in that litigation is represented by two other law firms. The bulk of the work is being done by one law firm. A single attorney from a Second Law Firm ("the Second Law Firm") has also entered his appearance. That attorney has an ongoing general relationship with that client, but is not equipped to handle the litigation matter, so brought in the firm doing the bulk of the work.

The inquirer resigned from the First Law Firm on approximately January 20, 2006. He reached the determination to leave the First Law Firm in early January 2006 and advised his firm of his intent at that time.

At present, the inquirer is not affiliated with any firm. However, before he left the First Law Firm he had what he refers to as very general discussions with the Second Law Firm about his possibly becoming associated with it. There has been no offer of any position, and the inquirer has not advised his former client of his possible interest in a professional relationship with the Second Law Firm. The inquirer estimates that approximately 60-90 days will elapse between the time he left the First Law Firm on January 20 and any possible acceptance of any position offered by the Second Law Firm.

The inquirer is familiar with the obligations set forth in Pennsylvania Rules of Professional Conduct 1.10 and inquires as to whether or not, assuming he were to accept a position with the Second Law Firm, he would run afoul of the Rules of Professional Conduct.

Since receipt of the initial inquiry, the Second Law Firm has joined in this inquiry.

The question is addressed directly by Rule 1.10(b) of the Pennsylvania Rules of Professional Conduct which provides as follows:

  • When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the other matter unless:
  • the disqualified lawyer is screened from any participation in the matter and is apportioned that no part of the fee therefrom; and
  • written notice is promptly given to the appropriate client to enable it to ascertain compliance with the provisions of this rule.
This rule has been addressed in several cases, most notably Dworkin vs. General Motors Corporation, (E.D. Pa. 95-2695, November 27, 1995) and Norfolk Southern Company vs. Reading Blue Mountain and Northern Railroad Company, ( M.D.Pa. No. 03CV736, October 25, 2005.)

Those cases discuss factors to be used by a court in determining whether to grant a motion to disqualify. In each of those cases a lawyer who had been representing a client left a law firm with which he was associated in that representation to join a law firm that was involved in the representation of the adverse party in that same lawsuit. In each case the former client of the departing lawyer filed a motion to disqualify the firm which the departing lawyer joined on the ground that its former counsel's joining the adverse law firm had created an impermissible conflict.

The relevant factors include:

  • The substantiality of relationship between the departing attorney and former client;
  • The nature of the disqualified attorney’s involvement in the specific matter;
  • The time lapse between the end of the departing lawyer’s representation of the former client and his engagement by the new firm with which he becomes involved;
  • The timing of the establishment of the procedures undertaken to screen the departing lawyer from any involvement of any kind with the matter in which he had formerly been involved;
  • The size of the firm being joined by the former lawyer;
  • The features of the wall itself;
  • prohibition of discussion of sensitive matters;
  • restriction on circulation of sensitive documents;
  • restriction on access of attorney to the files;
  • strong firm policy against breach including sanctions and physical or geographical separation.
The courts in Dworkin and Norfolk Southern looked at these factors carefully. The Norfolk Southern Court determined that the motion to disqualify would be granted. The Dworkin Court reached the conclusion that requirements of the rule were satisfied and denied the motion to disqualify. We will not in this opinion attempt to summarize them and refer any reader of this opinion to them. We will, however, highlight the following points as worth special attention.

The main differences between the cases seemed to be that the Norfolk Southern Court was troubled by the fact that the departing attorney, while still employed at his prior firm and while still representing the first client, had received an actual offer of employment by the firm which he joined.

Second, the Norfolk Southern Court seemed troubled by the fact that the policy that was adopted at the second law firm did not state explicitly that violation of the policy establishing the screening required by the rule would lead to drastic sanctions, including termination. The policy in Dworkin explicitly so stated, but the policy in Norfolk Southern did not.

Finally, the Second Law Firm in Norfolk Southern did not explicitly state that the departing lawyer would not share in any portion of any fee generated by the representation in the matter in which the firm was adverse to the departing lawyer’s former client.

The Committee's view is that the inquirers should be able to devise a plan to meet the requirements of the Rule, since no fact of which we have been advised would appear to prevent adherence to the Rule. We suggest that if they determine to become associated, they carefully devise a plan to comply with the Rule and the case law applying it.

We also note that the Second Law Firm is not intimately involved in the day to day litigation adverse to the former client. Only one of its lawyers has apparently entered his appearance and has a limited role. That does not result in any lessening of the inquirer's obligation to adhere to Rule 1.10. It may, however, be a factor in favor of a finding that it is relatively easy to screen the inquirer from any contact with the matter while at the Second Law Firm.

We add, however, that this opinion is limited to our views regarding the propriety of the conduct of the inquirers under the Rule. We cannot and will not opine as to the outcome of any motions to disqualify before any court. A motion to disqualify would be determined by the Judge assigned to the matter and he or she is not bound by the views of this Committee.

CAVEAT: The foregoing opinion is advisory only and is based upon the facts set forth above. The opinion is not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. It carries only such weight as an appropriate reviewing authority may choose to give it.