Ethics Question of the Month September 2023

If You Leave Me Now

When a lawyer has a conflict, do any other lawyers in the firm have one, too?

The Situation

Attorney Rafael is a partner at ABC law firm and lead counsel in a substantial case in which he represents a corporate client. Several months after accepting the engagement, he realizes that he has a conflict based a client he represented two years earlier at a different law firm before he came to ABC. ABC wants to keep[KD1] the client and continue the representation by screening Rafael from this matter and assigning it to another ABC attorney.

One possible replacement is Adele, another partner who appeared in the case when it was filed and who has been heavily involved since then. Adele would be ABC’s first choice because she is familiar with the case and the client and has litigated against opposing counsel in previous cases. However, the firm is concerned that because Adele has been working closely with Rafael to this point means that she is conflicted out as well.

Another possible replacement is Brian, who has limited involvement in the case. He did some research and wrote an extensive legal memo on the main legal issues in the case. Brian has not had any direct contact with Rafael or the courtroom activity.

Finally, Cassie has not been involved in the case at all to this point but has the experience and expertise to take over the representation and could quickly get up to speed.

The Question

Assuming that Rafael is properly screened at the time when the conflict is discovered, who of the following are ethically permitted to take the case over from Rafael?

The Correct Answer is D Of 229 Responses, 42% are correct.

  1. A 20
  2. B 41
  3. C 54
  4. D 97
  5. E 17

The Explanation

When a lawyer develops a conflict in the midst of ongoing litigation, what are the firm’s responsibilities regarding screening the conflicted lawyer and assigning their responsibilities to other attorneys in the firm? What level of involvement with the conflicted lawyer will disqualify a non-conflicted lawyer?

As it turns out, Rule 1.06 of the Texas Disciplinary Rules of Professional Conduct provides a fairly simple answer. Rule 1.06(f) provides that “If a lawyer would be prohibited by this Rule from engaging in particular conduct, no other lawyer while a member or associated with that lawyer's firm may engage in that conduct.” While other states do permit screens of individual attorneys in a law firm who are conflicted out of a representation, Texas does not. Texas’ rules are clear, though rather draconian – screens are not permitted to eliminate a conflict under these circumstances.[KD1] Any conflict of one attorney is imputed to all other attorneys in the entire firm. The correct answer is D.

Bluebook Citation

If You Leave Me Now: Ethics Question of the Month - September 2023, Texas Center for Legal Ethics (2023), from https://legalethicstexas.com/ethics-question-of-the-month/ethics-question-of-the-month-september-2023/ (last visited May 20, 2024)