Conflicts: Former Clients, Imputation and Screening: every key term you need (+ practice quiz)
25 flashcard terms for Professional Responsibility Topic 5, written to match the course framework. Study them here, then drill them as interactive flashcards, or test yourself with the 15-question quiz — free, no account needed.
Model Rule 1.9 forbids representing a new client in the same or a substantially related matter where the new client's interests are materially adverse to a former client, absent that former client's informed consent confirmed in writing.
Substantial relationship test
Two matters are substantially related if they involve the same transaction or dispute, or if there is a substantial risk that confidential information normally obtained in the first would materially advance the new client's position.
Material adversity
Adversity means the new client's position works against the former client's interests in the matter, such as suing them, negotiating against them, or attacking work the lawyer previously performed for them.
Playbook knowledge
General familiarity with a former client's negotiating style, risk tolerance, or personnel is usually not enough to disqualify, unless the information is specific and would materially advance the new client in that matter.
Former client consent formality
A former client conflict can be waived, but the waiver requires informed consent confirmed in writing, and the lawyer must still honor the continuing confidentiality duty of Model Rule 1.9(c).
Migratory lawyer conflicts
Model Rule 1.9(b) disqualifies a lawyer whose prior firm represented a client in a substantially related matter only if the lawyer personally acquired protected information material to the new matter.
Imputed disqualification
Model Rule 1.10 treats lawyers associated in a firm as one lawyer, so a disqualifying conflict of any one lawyer generally spreads to all, subject to exceptions for personal interest conflicts and for permitted screening.
Screening defined
Under Model Rule 1.0(k) a screen is a set of timely imposed procedures isolating the affected lawyer from any participation in the matter and from access to its files, adequate under the circumstances to protect the information.
Screening a lateral hire
Model Rule 1.10(a) allows a firm to avoid imputation when a newly associated lawyer brings a conflict, provided the lawyer is timely screened, receives no part of the fee from that matter, and prompt written notice goes to the affected former client.
Notice requirements for screening
The written notice must describe the screening procedures, state the firm's and the screened lawyer's compliance obligations, offer a review by an independent tribunal on request, and promise responses to the former client's questions.
Firm departure and continuing conflicts
When a lawyer leaves, the firm may take a matter adverse to a client the departed lawyer represented unless a remaining lawyer has material protected information, so the conflict follows the information rather than the letterhead.
Definition of firm
Model Rule 1.0(c) includes lawyers in a partnership, professional corporation, legal services organization, or the legal department of a corporation, and its scope determines how broadly conflicts are imputed.
Of counsel and shared office space
Whether imputation applies to an of counsel lawyer or office-sharing solos turns on how closely they associate, share files, and hold themselves out, because the reasonable client expectation of a shared practice drives the analysis.
Former government lawyer conflict
Model Rule 1.11 bars a former government lawyer from private representation in a matter in which she personally and substantially participated, unless the government agency gives informed consent confirmed in writing.
Screening a former government lawyer
The firm may still take the matter if the disqualified lawyer is timely screened, is apportioned no part of the fee from that matter, and written notice is promptly given to the appropriate government agency.
Confidential government information
A former government lawyer possessing confidential government information about a person may not represent a private client whose interests are adverse to that person where the information could be used to that person's material disadvantage.
Current government lawyer conflicts
A lawyer now serving the government may not participate in a matter in which she participated personally and substantially in private practice, absent the agency's informed consent confirmed in writing, and may not negotiate for private employment with a party in such a matter.
Former judge or arbitrator conflicts
Model Rule 1.12 bars representing anyone in a matter in which the lawyer participated personally and substantially as a judge, adjudicative officer, law clerk, arbitrator, mediator, or other third-party neutral, absent written informed consent from all parties.
Law clerk negotiation exception
A judicial law clerk may negotiate for private employment with a party or lawyer in a matter, provided the clerk first notifies the judge, unlike a judge or neutral who may not negotiate while participating.
Party-appointed arbitrator exception
A lawyer who served as a partisan arbitrator selected by one party in a multimember panel is not barred from later representing that party, because the role was never neutral.
Screening under Model Rule 1.12
A firm may keep a matter despite a former judge's or neutral's disqualification if that lawyer is timely screened, receives no part of the fee, and written notice goes promptly to the parties and any tribunal involved.
Matter identity requirement
The government and adjudicator conflict rules turn on the same specific matter involving identifiable parties, so general rulemaking or policy work rarely disqualifies while a particular investigation or case does.
Consequences of an imputed conflict
Beyond discipline, an unresolved imputed conflict can support a disqualification motion, fee forfeiture, or a malpractice claim, and disqualification analysis in court is not always identical to the disciplinary standard.
Conflict checking systems
Model Rules 5.1 and 1.7 practically require a reliable database recording clients, adverse parties, and related entities, checked at intake and updated when parties are added or lawyers move between firms.
Waiver by the affected client
An imputed conflict may generally be waived by informed consent confirmed in writing under the same conditions that would allow the individually affected lawyer to proceed, unless the conflict is nonconsentable.