Lawyers are on the move more than ever. An important aspect of any lateral movement, for both the moving lawyer and the firm to which the lawyer is headed, is assessing the possibility of conflicts of interest. See California Rules of Professional Conduct (Rule), rules 1.7, 1.9. California’s rule on the imputation of conflicts generally provides that while lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so due to a current client (Rule 1.7) or a former client (Rule 1.9) conflict of interest. See Rule 1.10(a) (“Imputation of Conflicts of Interest: General Rule”). Thus, a lawyer tainted by a former client conflict who is moving to a new firm runs the risk of tainting the lawyers in the new firm, absent the former client’s informed written consent. See Rule 1.9(a)&(b) (“Duties to Former Clients”).
This general rule of imputation has some important caveats. One of those caveats relates to “former client” conflicts. Rule 1.10(a)(2) expressly provides that where a prohibited lawyer’s conflict is based upon Rule 1.9 (a) or (b) and arises out of the lawyer’s association with a prior firm, imputation to the rest of the lawyers in the new firm may be prevented if the prohibited lawyer “did not substantially participate” in the same or a substantially related matter, the prohibited lawyer is timely screened from any participation in the matter and apportioned no part of the fee therefrom, and appropriate notice is provided to the affected former client. See Rule 1.10(a)(2)(i)-(iii).
It is therefore critical, in analyzing a former client conflict arising out of a lateral lawyer’s association with a prior firm, to evaluate whether the lawyer “substantially participated” in the matter creating the conflict. Comment  to Rule 1.10 provides some guidance in that regard. It states that “a number of factors should be considered, such as the lawyer’s level of responsibility in the prior matter, the duration of the lawyer’s participation, the extent to which a lawyer advised or had personal contact with the former client, and the extent to which the lawyer was exposed to confidential information of the former client likely to be material to the current matter.” The term “substantial” is also defined under Rule 1.0.1 (“Terminology”): “’Substantial’ when used in reference to degree or extent means a material matter of clear and weighty importance.” Rule 1.0.1(l). Lawyers should also consult relevant case law and other resources for guidance in determining what constitutes substantial participation.
Understanding Rule 1.10, including the caveat under 1.10(a)(2), is important for lateral lawyers and the firms to which they are moving. If properly applied, the Rule can help both the lawyer and the new firm meaningfully evaluate the risk of imputation and the potential use of a screen under Rule 1.10(a)(2)(ii).
Andrew Dilworth is a partner in the San Francisco office of O’Rielly & Roche LLP. His practice focuses on representing and counseling lawyers and law firms on the law governing lawyers.