An attorney who works on a contract basis for more than one law firm will be considered an associate of each
firm for conflicts and confidentiality purposes unless: (1) there is a written agreement that limits the scope of the contract attorney's work to a particular client for a particular project (specifying that the relationship will terminate at the end of the project or at a particular time or upon the occurrence of a particular event); and (2) the contract attorney will not have general access. [ERs 1.6, 1.7, 1.8, 1.9, 1.10]
The inquiring attorney requested a written ethics opinion from the State Bar of Arizona on the potential conflicts of interest in providing legal services on a contractual basis for numerous Arizona practitioners.
1. Whether a contract attorney who provides discrete research services for an outside co-counsel for a city is later disqualified from providing contract legal services to another lawyer in a suit against the city.
2. Whether a contract lawyer is considered an “associate” of each firm for which she performs services, for conflicts purposes.
RELEVANT ETHICS RULES
ER 1.7 Conflict of Interest: General Rule
ER 1.9 Conflict of Interest: Former Client
ER 1.10 Imputed Disqualification: General Rule
RELATED ETHICS OPINIONS
ABA Op. 88-356
1. The first question concerns the following situation. Attorney A, who represents the City of Someplace, Arizona, hired Attorney B to serve as defense co-counsel in a wrongful discharge claim. Attorney B then contracted with the inquiring attorney to provide research and writing assistance on the case. The inquiring attorney had no contact with either Attorney A or the City. Six months later, Attorney D contacted the inquiring attorney regarding providing contractual services in a pregnancy discrimination suit against the City. The inquiring attorney asks whether, and under what circumstances, she may assist Attorney D.
The terms of the contractual relationship determine the scope of representation and hence the conflict of interest issues. It is unclear, however, from the inquiring attorney’s letter whether Attorneys A and B continue to represent the City in the original action, or whether her contractual relationship with Attorney B continued to the time that Attorney D contacted her.
Under ER 1.7(a), a lawyer may not represent a client if that representation would be directly adverse to another client, unless the lawyer reasonably believes the representation will not adversely affect the relationship with the other client, and each client consents after consultation. If the inquiring attorney’s contractual agreement with Attorney B calls for an ongoing relationship, and Attorney B continues to represent the City, the inquiring attorney’s work with Attorney D would be directly adverse to the city and would require both clients’ consent. That the pregnancy discrimination suit is unrelated to the wrongful discharge claim is irrelevant to the analysis. See Comment to ER 1.7.
If the inquiring attorney’s relationship with Attorney B has concluded at the time of her contact with Attorney D, ER 1.9 is controlling. A lawyer who has formerly represented a client in a matter may not thereafter:
(a) Represent another person in the same or a substantially related matter
in which that person’s interests are materially adverse to the interests
of the former client, unless the former client consents after consultation; or
(b) Use information relating to the representation to the disadvantage of
the former client.
Assuming the two matters involving the City are not substantially related, and they appear not to be, ER 1.9(a) would not bar the inquiring attorney’s work with Attorney D. However, it can be assumed that the inquiring attorney was privy to confidential information regarding the City while working with Attorney B. See, Comment to ER 1.10. In that situation, ER 1.9(b) would prohibit the inquiring attorney from working with Attorney D if the information acquired could be used to the disadvantage of the City, unless the City consents after consultation.
2. The second question raises a broader issue: whether the inquiring attorney is considered an associate of each firm for which she provides legal services. The inquiring attorney works regularly with Attorneys B, D, E and F on various matters and wishes to know whether she may provide contractual legal services to any attorney who has a lawsuit against a client of Attorney B, D, E or F, regardless of whether she has done work for that client.
As with the answer to the specific question above, the terms of the contractual relationship between the inquiring attorney and the other attorney will determine the scope of representation. The inquiring attorney is considered to be associated with a firm for the duration of the contract with that firm. If the contract is open-ended and not project-related, the inquiring attorney remains fully associated with the firm, and the imputed disqualification principles of ER 1.10(a) apply: While lawyers are associated in a firm, none of them may knowingly represent a client when any one of them will be prohibited from doing so under the conflict of interest and confidentiality rules.
If, however, the inquiring attorney’s relationship with each firm concludes at the end of each project, the inquiring attorney is considered to be moving from one firm to another, and ER 1.10(b) applies:
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 confidential information that is
material to the matter.
The Rules of Professional Conduct take a functional approach to the question of vicarious disqualification. Two functions are involved: preserving confidentiality and avoiding positions adverse to a client. See Comment to ER 1.10. The Comment to ER 1.10 makes the following observations regarding confidentiality:
Preserving confidentiality is a question of access to information. Access
to information, in turn, is essentially a question of fact in particular
circumstances, aided by inferences, deductions or working presumptions
that reasonably may be made about the way in which lawyers work
together. A lawyer may have general access to files of all clients of a law
firm and may regularly participate in discussions of their affairs; it should be
inferred that such a lawyer in fact is privy to all information about all the
firm’s clients. In contrast, another lawyer may have access to the files of
only a limited number of clients and participate in discussion of the affairs of
no other clients; in the absence of information to the contrary, it should be
inferred that such a lawyer in fact is privy to information about the clients
actually served but not those of other clients.
Comment to ER 1.10.
Applying these principles to the second question, an attorney is not automatically barred from working with a firm, or, put in terms of ER 1.10(b), the firm is not automatically barred from continuing to represent its client in the lawsuit against the temporary attorney’s former client. If an attorney only had access to the client files on which she worked, one can reasonably presume that the attorney had confidential information about only those clients. Therefore, the principles of imputed disqualification would not apply to other clients of the attorney’s previous firm, and an attorney would not need to be aware of each and every client of the firms for whom she works. Of course, if the attorney had acquired confidential information that is material to the matter, whether or not the attorney worked on it in her former firm, the new law firm cannot continue the representation of its client adverse to the client of the temporary attorney’s former firm without the latter client’s consent.
As for the duty to avoid adverse positions, an attorney must abstain from adverse representation in a substantially related matter. However, the attorney’s abstention is not imputed to a current firm as long as the confidentiality requirements of the rule are met.
In addition to an agreement that specifies what services will be performed for which client and for how long, the employing attorney also should have other screening devices established. For instance, the temporary lawyer and support staff should be informed that the temporary lawyer may not have unlimited access to the firm files and other client matters should not be discussed in the presence of the temporary lawyer.
Absent both an agreement that limits the temporary lawyer’s time and scope of services and other appropriate screening devices, a contract lawyer will be considered a full associate of each firm that hires him or her, for conflicts and confidentiality purposes.
Because the inquiring attorney’s letter does not specify the details of her contractual relationship with each attorney, a thorough analysis of her particular situation is not possible. However, the following prescriptive guidelines can be given for employment of contract/temporary attorneys in order to avoid having to treat the temporary lawyer as a full associate of the firm:
1. Make certain that an agreement clearly defines the scope of the attorney’s work. The contract should specify the project or projects and the specific client or clients for whom the lawyer will be providing services. The contract also should make clear that the relationship will terminate at the completion of the project, by a particular date or upon the occurrence of a particular event.
2. Establish a working relationship whereby the attorney does not have general access to all of the firm's files. Because the burden of proof rests on the firm disqualification is sought, the attorney and the firm should avoid circumstances that would create the inference that confidential information was obtained. Both the written agreement and actual work place should limit the temporary attorney’s access to only those client files and information for whom the lawyer was retained.