Kansas Bar Journal
Vol. 78 No. 7.
Thinking Ethics: Conflicts Checking When Lawyers Change Firms: Revelation of Client Confidences
Vol. 78 No. 7 July/August 2009Thinking Ethics: Conflicts Checking When Lawyers Change Firms: Revelation of Client ConfidencesBy Professor Sheila Reynolds Law firm A hears from its partner L that he wants to move to law firm B. Shortly thereafter firm B asks firm A to provide it with a list of names of all law firm clients for whom L has worked and a general description of the nature of the client's matter. Knowing that ethics rules forbid disclosure of all information obtained in the course of representing a client, absent a clear exception, firm A's first thought is to decline to provide the information, citing Kansas Rule of Professional Conduct 1.6. But in order to protect its clients from a conflict of interest created by L's move, firm B also has an ethical duty to check for conflicts that may be imputed to the firm if L begins to work there.(fn1) Such conflicts may arise both from substantially related matters L personally worked on while at firm A and matters other lawyers handled, but about which he has material, confidential information. To ignore this conflict check could harm firm B's clients and result in malpractice if the firm is later disqualified because of a conflict the firm failed to learn about.
When such a significant clash of ethical values occurs, lawyers expect the ethics rules to spell out a resolution. However, nothing in the ABA Model Rules or the Kansas Rules of Professional Conduct (KRPC) explicitly addresses this dilemma. Additionally, the law of attorney-client privilege, under which client identity is not generally protected, is not helpful because it is a matter of evidentiary law, governed by different principles and legal analysis than the law of ethics.
Kansas' lawyers will find guidance on the dilemma posed above by Kansas Bar Association Ethics Opinion 07-01 (Opinion), which concludes on this issue that a law firm may not refuse to disclose a client list to another firm for the purpose of conflicts checking. The Opinion turns on recognition of how necessary it is to check for conflicts in today's legal climate, where firms break up and lawyers frequently move from one law office to another. The ethical duty of avoiding...