ARTICLE: Time for a change? Rule 1.10 and the General Rule for Imputations of Conflicts of Interest

Louisiana Advocates, June 2021, Vol. XXXVI, No. 6. Copyright
Louisiana Association for Justice. Used with Permission.

Did you know that in Louisiana a law firm cannot avoid imputation of a conflict of interest by screening out the disqualified lawyer?  That’s right.  In Louisiana, a single, disqualified lawyer in a firm disqualifies the entire firm.  A 500-person firm could have to turn away a client because a single lawyer in that firm is disqualified due to a conflict of interest.  This is different from many other jurisdictions and also deviates from the ABA Model Rule.  But it doesn’t have to be this way.  Let’s dive in and assess:

(1)   what current Rule 1.10 of Louisiana’s Rules of Professional Conduct (“LA RPC”) says,

(2)   how the ABA Model Rule (and the likely coming changes to it) differs from the LA RPC,

(3)   what changes are currently being proposed in Louisiana, and

(4)   how these proposals could benefit Louisiana clients, lawyers, and firms.

Current LA. RPC 1.10 is short and sweet, but it leaves out crucial provisions contained in the ABA’s Model Rule:

Current LA. RPC 1.10

(a) 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 by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.

(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:

(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and

(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.

(c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7.

(d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.

ABA Model RPC 1.10

Crucially, unlike ABA Model RPC 1.10, LA. RPC 1.10 does not allow for a screening out a disqualified lawyer whose disqualification arises from that disqualified lawyer’s association with a prior firm.  By contrast, under ABA Model RPC 1.10, a single lawyer’s disqualification does not taint the whole firm as long as screening safeguards are timely implemented.  There are two main safeguards that still protect the client under the ABA Model RPC 1.10.  First, the disqualified lawyer can’t get a fee from participating in the matter he or she is screened from.  Among other things, this eliminates the monetary incentive for the disqualified lawyer.  Second, the disqualified lawyer has to be timely screened.  Third, the client’s rights are also protected since ABA Model RPC 1.10 requires prompt written notice to the client so that the client can make sure the screening provisions are being followed.  Finally, if the client has any concerns regarding the screening, upon the client’s written request, the client can request certificates of compliance related to the screening procedures at reasonable intervals.  This screening procedure under ABA Model Rule 1.10 protects the client’s interest without the harsh complete imputation of La. RPC 1.10. 

Although La. RPC 1.10 was already lagging behind the ABA’s Model Rule, it is poised to be even more outdated.  On March 8, 2021, the ABA Ethics 2000 Commission posted “Reporter’s Explanation of Changes” to Model RPC 1.10, explaining that it is persuaded that Paragraph C is also ripe for change.[1]  Under the proposed change, lateral hires could also be screened, too.  The proposed change allows for lateral hires to be timely screened as well as long as the former client has written notice.  Assuming this amendment is adopted, when a lawyer becomes associated with a firm, the firm can represent a client even if the lateral hire is disqualified from representing that client so long as the personally-disqualified lawyer is screened and written notice is given to the affected former client.  This is a change from the current rule, that requires the former client to affirmatively waive the conflict.  As the Commission explains, “The Commission is persuaded that nonconsensual screening in these cases adequately balances the interests of the former client in confidentiality of information, the interests of current clients in hiring the counsel of their choice (including a law firm that may have represented the client in similar matters for many years) and the interests of lawyers in mobility, particularly when they are moving involuntarily because their former law firms have downsized, dissolved or drifted into bankruptcy. There are presently seven jurisdictions that permit screening of laterals by Rule. The testimony the Commission has heard indicates that there have not been any significant numbers of complaints regarding lawyers' conduct under these Rules.” 

Proposals for Reforming La. RPC 1.10

I submitted a proposal to the Louisiana State Bar Association Young Lawyers Division Council, and the LSBA YLD recently discussed this proposal.  The LSBA YLD discussed both changes discussed above as well as other matters related to this rule.  The next step is for this issue to be brought to the attention of the Louisiana Committee on the Profession.[2] 

Proposals for Reforming La. RPC 1.10

Some considerations in support of amending this rule include the following five points:

First, as long as the screening is conducted per the Model Rule, there wouldn’t be any harm to the clients.  Their interests would remain protected. 

Second, it would resolve a conflict between the current Louisiana rule and Petrovich v. Petrovich, 556 So. 2d 281, 282 (La. Ct. App. 4th Cir. 1990), writs denied 559 So. 2d 1377 (La. 1990)  (an opinion which suggested that a “cone of silence” around a disqualified lawyer could resolve a conflict).

Third, it would actually benefit clients.  Right now, big institutional clients could have difficulty finding counsel among leading Louisiana firms.  Big clients have many cases, and big firms have many attorneys.  This magnifies the risk of conflicts that run afoul of the current rules and could force clients to go to less qualified firms with fewer resources.  Amending the Rule would give clients more choice in competent counsel, while—through screening—still protecting the interests clients. 

Fourth, it would be a huge help to attorneys and firms.  Right now, even a 100-person firm has to turn business away because of a single disqualified lawyer.  And as for the disqualified lawyer—it could make it harder for that lawyer to move firms. This is disproportionately harsh, especially considering the existence of screening mechanisms that can protect clients. 

Finally, as a practical matter, a lot of Louisiana attorneys and firms are under the impression that they can screen lawyers.  I’ve actually had attorneys flat-out deny that the current Louisiana rule actually is the Louisiana rule, insisting that screening is totally viable in Louisiana.  Although anecdotal, this suggests that many Louisiana attorneys already think the LA RPC already tracks the ABA Model Rule.  This may be particularly prevalent for multijurisdictional firms.  Louisiana has a chance not only to modernize its Rule, but also to get ahead of the curve by adopting the ABA Committee’s proposal regarding lateral hire screening.   

[1] https://www.americanbar.org/groups/professional_responsibility/policy/ethics_2000_commission/e2k_rule110rem/

[2] https://www.lsba.org/BarGovernance/CommitteeInfo.aspx?Committee=a7fd152c-b11c-46f0-a707-4736bf04ae1f

By Casey C. DeReus

Casey C. DeReus is a member of the American Bar Association’s Disaster Legal Service’s team. She is an associate at Baer Law LLC, and her primary areas of practice are negligent security, trucking casualty, rideshare motor vehicle collisions, and wrongful death and survival action cases. cdereus@baerlawllc.com