NOTE REGARDING REVISED OPINION:
Following the March 22, 2016 Order of the Supreme Court of Texas, amending comments to Rules 1.06 and 1.09 of the Texas Disciplinary Rules of Professional Conduct, the Committee withdraws its original Opinion 644 (August 2014) and issues this revised Opinion 644 in its place.
Do the Texas Disciplinary Rules of Professional Conduct require a law firm to withdraw from representing a client in a lawsuit if the law firm hires a new lawyer who, before becoming a lawyer, was employed as a law clerk for the law firm representing the opposing party in the lawsuit and in that capacity helped provide services to the opposing party with respect to the lawsuit?
Individual X, while in law school and before becoming a lawyer, worked as a law clerk for a law firm (“Firm A”) and prepared research memos for the firm related to a lawsuit in which the firm represented the plaintiff, Business P, against Business D. After graduation from law school and passing the bar examination, Individual X began working as an associate for a second law firm (“Firm B”), which represents the defendant, Business D, in the lawsuit brought by Business P. Once Firm B learns that Individual X worked for Firm A as a law clerk while in law school and was involved in Firm A’s representation of Business P in the lawsuit against Business D, Firm B seeks to determine whether it must withdraw from representing Business D in the lawsuit or whether it can continue to represent Business D if it utilizes screening procedures to prevent Individual X from being involved in the representation of Business D and from sharing any confidential information concerning Business P with anyone in Firm B. Business P and Firm A have not waived their rights concerning information entrusted to Individual X.
Tex. Comm. On Professional Ethics, Op. 644 (2016)