Business Acronym COI as CONFLICT OF INTERESTIt’s common for law students to clerk for a couple different firms during their law-school years.  When a law clerk or a law school graduate you hire has clerked for a firm representing a party adverse to your client, what happens?  Is the student or newly-minted lawyer disqualified from working on your matter? Is your whole firm disqualified?  Can you screen the clerk/former clerk and solve the problem?  Two recent ethics opinions out of Texas and Ohio clarify the rules.

Lone Star ethics opinion

The issue, of course, is centered on state versions of Model Rules 1.7, 1.9 and 1.10.  Firms have a justifiable concern that they may be precluded from taking on work — or worse, be disqualified from an ongoing matter — if a law clerk or new lawyer joins the firm after having worked for opposing counsel.  Acquiring confidential client information can disqualify the clerk from working on the adverse matter at the new firm and the conflict can be imputed to the whole firm.

In March 2016, the Texas Supreme Court amended Texas Disciplinary Rule of Professional Conduct 1.06, its unique version of the Model Rule on conflicts, to add a comment addressing how conflict imputation works for non-lawyer employees and lawyers who were formerly involved in a matter in a non-lawyer role.   Comment [19] provides that with proper screening, the conflict of interest of a non-lawyer, or the conflict of a lawyer that arose before the person became a lawyer, is not imputed:

A law firm is not prohibited from representing a client … merely because a nonlawyer employee of the firm, such as a paralegal or legal secretary, has a conflict of interest arising from prior employment or some other source…. [or] … merely because [of] … a conflict of interest arising from events that occurred before the person became a lawyer, such as work that the person did as a law clerk or intern. But the firm must ordinarily screen the person with the conflict from any personal participation in the matter to prevent the person’s communicating to others in the firm confidential information that the person and the firm have a legal duty to protect.

The new Texas ethics opinion applied the new comment and ruled that when a firm hires a new associate who worked as a clerk for the firm representing the opposing party, the former clerk is disqualified from working on the case at the new firm, but that the new firm can screen the clerk and avoid imputation of the clerk’s conflict.  That sensible approach is good news for Texas firms and law clerks, and the comment is broadly aimed at other incoming non-lawyer employees, such as secretaries, too.

Buckeye ethics opinion

Over in my bailiwick, Ohio’s Board of Professional Conduct issued similar advice earlier this summer.  Based on Ohio’s rules of practice governing certified legal interns, who effectively function as lawyers under clinical supervision even while in law school, the Board said that:

The conflicts of a former legal intern, newly employed as a lawyer, are not imputed to the lawyers in a law firm, but necessitate the screening of the lawyer from any matter [for which] he or she had substantial responsibility.

On the other hand, the Board said, the conflicts of current legal interns are imputed to the firms they simultaneously clerk for.  That seems fair, because by being certified under the state’s legal intern rules, the students working at their school legal clinics are more like lawyers, and should be treated as such for conflicts purposes, while striking a balance in favor of their post-law school employability.

Check your rules

As always, these principles come in lots of flavors, and you must know your own jurisdiction’s approach.  Texas and Ohio have gotten it right, protecting clients’ legitimate confidentiality interests, and maximizing the ability of law firms to bring on new lawyers, which of course benefits the firms and the lawyers.