Vol. 79 No. 1. Thinking Ethics: Conflicts and Confidentiality: Duties When A Lawyer Changes Firms.

Author:By J. Nick Badgerow

Kansas Bar Journal

Ethics Columns.


Vol. 79 No. 1.

Thinking Ethics: Conflicts and Confidentiality: Duties When A Lawyer Changes Firms

Vol. 79 No. 1 January 2010Thinking Ethics: Conflicts and Confidentiality: Duties When A Lawyer Changes FirmsBy J. Nick Badgerow Everyone has observed a marked increase in the number of lawyers moving between firms over the past several decades. The lawyer who remains with the same firm for an entire career is becoming more rare all the time. There are several reasons for this phenomenon, most of them monetary, signaling a shift in lawyers' general philosophy about employment.

The shift is characterized by the observation that private practice lawyers today, unlike those who preceded them, do not necessarily expect nor pursue a lifelong employment covenant with law firms. Similarly, there is far less certainty within firms that the talent hired today will remain with the firm for the future. The totality of the paradigm shift has engendered a new protocol in the profession: Both lawyers and law firms have quietly acknowledged that there is a rationale and purpose in lawyers changing law firm employers.[(fn1)]

Given this shift, it is clear that lawyers and law firms must be even more vigilant in complying with their ethical obligations to clients. In addition, initial discussions about a lateral move do not always lead to a change in employment. In short, lawyers must make sure that a lateral move will not create conflicts of interest, to the detriment of their clients (and themselves), but they must also make sure that client confidential information is maintained and not disclosed.(fn3)

Moreover, once a lawyer decides to change firms, the failure to avoid a conflict can be detrimental to both the lawyer and the firm, mainly in the form of potential disqualification from the representation of one or both clients involved in the conflict. Under Rule 1.10(a), the law firm is prohibited from representing a client if the lateral coming into the firm has a conflict. Under this Rule, a lawyer entering a firm brings with him all the current client conflicts he has; in addition, the lawyer brings all the former client conflicts he had in his prior firm, at least to the extent that the matter is the same or substantially related to one in which the lawyer's prior firm represented the client...

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