
Opinion 2006-1
(March 2006)
The inquirer is an attorney who has recently resigned from a 20-attorney law firm in Philadelphia ("First Law Firm"). While at the First Law Firm, he represented a client in insurance coverage litigation. He was intimately involved with that matter as its lead counsel in the litigation.
The adverse party in that litigation is represented by two other law firms. The bulk of the work is being done by one law firm. A single attorney from a Second Law Firm ("the Second Law Firm") has also entered his appearance. That attorney has an ongoing general relationship with that client, but is not equipped to handle the litigation matter, so brought in the firm doing the bulk of the work. The inquirer resigned from the First Law Firm on approximately January 20, 2006. He reached the determination to leave the First Law Firm in early January 2006 and advised his firm of his intent at that time. At present, the inquirer is not affiliated with any firm. However, before he left the First Law Firm he had what he refers to as very general discussions with the Second Law Firm about his possibly becoming associated with it. There has been no offer of any position, and the inquirer has not advised his former client of his possible interest in a professional relationship with the Second Law Firm. The inquirer estimates that approximately 60-90 days will elapse between the time he left the First Law Firm on January 20 and any possible acceptance of any position offered by the Second Law Firm. The inquirer is familiar with the obligations set forth in Pennsylvania Rules of Professional Conduct 1.10 and inquires as to whether or not, assuming he were to accept a position with the Second Law Firm, he would run afoul of the Rules of Professional Conduct. Since receipt of the initial inquiry, the Second Law Firm has joined in this inquiry. The question is addressed directly by Rule 1.10(b) of the Pennsylvania Rules of Professional Conduct which provides as follows:- When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the other matter unless:
- the disqualified lawyer is screened from any participation in the matter and is apportioned that no part of the fee therefrom; and
- written notice is promptly given to the appropriate client to enable it to ascertain compliance with the provisions of this rule.
- The substantiality of relationship between the departing attorney and former client;
- The nature of the disqualified attorneys involvement in the specific matter;
- The time lapse between the end of the departing lawyers representation of the former client and his engagement by the new firm with which he becomes involved;
- The timing of the establishment of the procedures undertaken to screen the departing lawyer from any involvement of any kind with the matter in which he had formerly been involved;
- The size of the firm being joined by the former lawyer;
- The features of the wall itself;
- prohibition of discussion of sensitive matters;
- restriction on circulation of sensitive documents;
- restriction on access of attorney to the files;
- strong firm policy against breach including sanctions and physical or geographical separation.