Conflicts of Interest - Imputation

Question 1

What is the basic rule of imputation?

Answer 1

While lawyers are associated in a firm, none of them shall knowingly represent a client when any of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9 unless

[ABA Model Rule 1.10]

Question 2

How many Imputation Scenarios are there?

Answer 2

There are seven Imputation Scenarios.

Question 3

What is the first imputation scenario?

Answer 3

Scenario #1: Imputed Disqualification from Simultaneous Representation of Conflicting Interests

Basically, if any lawyer at the firm would be disqualfied from taking a new client because the lawyer currently represents a conflicting interest (ABA Model Rule 1.7(a)), then none of the lawyers can represent that new client.

Question 4

How do you get around Scenario #1: Imputed Disqualification from Simultaneous Representation of Conflicting Interests?

Answer 4

The only option is waiver which would required that:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the clients are not directly adverse;

(4) each affected client gives informed consent, confirmed in writing.

Screening is not possible for Scenario #1.

Question 5

What is the second Imputation Scenario?

Answer 5

Scenario #2: Imputed Disqualification from Successive Representation of Conflicting Interests

Question 6

How do you get around Scenario #2: Imputed Disqualification from Successive Representation of Conflicting Interests?

Answer 6

Screening is available.

Screening requires:

(1) No participation from the disqualified lawyer;

(2) No fees from the matter for the disqualified lawyer;

(3) Written notice to the affected prior client; and

(4) Certificates of compliance sent to the former client at regular intervals if requested.

Waiver is also available if permitted under Model Rule 1.9.

Question 7

What is the third Imputation Scenario?

Answer 7

Scenario #3: Special Rules for Conflicts Based on Lawyer’s Own Interest

Question 8

How do you get around Scenario #3: Special Rules for Conflicts Based on Lawyer’s Own Interest?

Answer 8

Screening is available so long as this one lawyer’s personal interest “Does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.”

Screening requires:

(1) No participation from the disqualified lawyer;

(2) No fees from the matter for the disqualified lawyer;

(3) Written notice to the affected prior client; and

(4) Certificates of compliance sent to the former client at regular intervals if requested.

Waiver is also available if the conflict arises out of Rule 1.7(a)(2) and not Rule 1.8(a)-(i).

A lawyer in breach of Rule 1.8(j) will also be disqualified, but the conflict will not impute.

Question 9

What is the fourth imputation scenario?

Answer 9

Scenario #4: Special Rules for Conflicts Based on a Lawyer’s Prior Government Employment

Question 10

How do you get around Scenario #4: Special Rules for Conflicts Based on a Lawyer’s Prior Government Employment?

Answer 10

You must satisfy two requirements:

(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.

Question 11

What is the fifth Imputation Scenario?

Answer 11

Scenario #5: Special Rules for Conflicts Based on a Prior Initial Consultation

Question 12

How do you get around Scenario #5: Special Rules for Conflicts Based on a Prior Initial Consultation

Answer 12

First, determine if a conflict could exist at all with these four questions:

(1) Is this about the same or substantially related matter?

(2) Is this a materially adverse interest?

(3) Did information pass?

(4) Would the information hurt the former prospective client?

Second, if a conflict exists, you can screen but there are three unique requirements:

(1) The retained attorney must be isolated from the former prospective client;

(2) The disqualified attorney must be denied participation fees, etc.

(3) The disqualified attorney’s initial consultation must have been minimally intrusive

Question 13

What is the sixth Imputation Scenario?

Answer 13

Scenario #6: Special Rules for Conflicts Based on a Lawyer’s Work with a Prior Firm

Question 14

How do you get around Scenario #6: Special Rules for Conflicts Based on a Lawyer’s Work with a Prior Firm?

Answer 14

First, determine if a conflict exists:

(1) Are the prospective client’s interests materially adverse to those of the former client?

(2) Has the lawyer actually acquired information from the former client that would be material to the prospective client’s matter?

Second, if the answer to these questions is yes, then two options are available:

(1) Screening

(2) Waiver

Question 15

What is the seventh Imputation Scenario?

Answer 15

Scenario #7: Special Rules for Conflicts Based on the Work of a Lawyer Who Has Left the Firm

Question 16

How do you get around Scenario #7: Special Rules for Conflicts Based on the Work of a Lawyer Who Has Left the Firm?

Answer 16

First, determine if a conflict exists.

As long as the client’s interests are not materially adverse to a client currently represented by the firm, a conflict only exists if:

(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 first has information protected by Rules 1.6 and 1.9(c) that is material to the matter.

Second, if a conflict exists, the conflict may be waived pursuant to Rule 1.7(b)(1)-(4).

Question 17

What does Screening generally require?

Answer 17

Screening requires:

(1) No participation from the disqualified lawyer;

(2) No fees from the matter for the disqualified lawyer;

(3) Written notice to the affected prior client; and

(4) Certificates of compliance sent to the former client at regular intervals if requested.

Question 18

What does Waiver generally require?

Answer 18

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve directly adverse parties;

(4) each affected client gives informed consent, confirmed in writing.

Question 19

What Imputation Scenarios are able to be remedied by screening?

Answer 19

Scenario #2: Imputed Disqualification from Successive Representation of Conflicting Interests

Scenario #3: Special Rules for Conflicts Based on Lawyer’s Own Interest (so long as this one lawyer’s personal interest “Does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.”)

Scenario #4: Special Rules for Conflicts Based on a Lawyer’s Prior Government Employment*

Scenario #6: Special Rules for Conflicts Based on a Lawyer’s Work with a Prior Firm?

Question 20

What Imputation Scenarios are able be remedied by Waiver?

Answer 20

Scenario #1: Imputed Disqualification from Simultaneous Representation of Conflicting Interests

Scenario #2: Imputed Disqualification from Successive Representation of Conflicting Interests

Scenario #3: Special Rules for Conflicts Based on Lawyer’s Own Interest*

Scenario #6: Special Rules for Conflicts Based on a Lawyer’s Work with a Prior Firm?