• Preamble
• Scope
• Chapter 1: Client-lawyer Relationship
  • Rule 1.0 Definitions
  • Rule 1.1 Competence
  • Rule 1.2 Scope of the Representation and the Allocation of Authority Between the Lawyer and Client
  • Rule 1.3 Diligence
  • Rule 1.4 Communication
  • Rule 1.5 Fees
  • Rule 1.6 Confidentiality
  • Rule 1.7 Conflict of Interest: General Rule
  • Rule 1.8 Conflict of Interest: Prohibited Transactions
  • Rule 1.9 Conflict of Interest: Former Client
  • Rule 1.10 Imputed Disqualification: General Rule
  • Rule 1.11 Successive Government and Private Employment
  • Rule 1.12 Former Judge or Arbitrator
  • Rule 1.13 Organizational Clients
  • Rule 1.14 Client under a Disability
  • Rule 1.15 Safekeeping Property
  • Rule 1.16 Declining and Terminating Representation
  • Rule 1.17 Sale of a Law Practice
• Chapter 2: The Lawyer as Counselor, Intermediary, and Dispute Resolution Neutral
  • Rule 2.1 Advisor
  • Rule 2.2 Lawyer Serving as Intermediary Between Clients
  • Rule 2.3 Evaluation for Use by Third Persons
  • Rule 2.4 Lawyer as Dispute Resolution Neutral
• Chapter 3: Advocate
  • Rule 3.1 Meritorious Claims and Contentions
  • Rule 3.2 Expediting Litigation
  • Rule 3.3 Candor Toward the Tribunal
  • Rule 3.4 Fairness to Opposing Party and Counsel
  • Rule 3.5 Impartiality and Decorum of the Tribunal
  • Rule 3.6 Trial Publicity
  • Rule 3.7 Lawyer as Witness
  • Rule 3.8 Special Responsibilities of a Prosecutor
  • Rule 3.9 Advocate in Non-adjudicative Proceedings
• Chapter 4: Transactions with Persons Other than Clients
  • Rule 4.1 Truthfulness and Candor in Statements to Others
  • Rule 4.2 Communication with Person Represented by Counsel
  • Rule 4.3 Dealing with Unrepresented Person
  • Rule 4.4 Respect for Rights of Third Persons
• Chapter 5: Law Firms, Legal Departments, and Legal Service Organizations
  • Rule 5.1 Responsibilities of a Partner, Managing Lawyer or Supervisory Lawyer
  • Rule 5.2 Responsibilities of a Subordinate Lawyer
  • Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
  • Rule 5.4 Professional Independence of a Lawyer
  • Rule 5.5 Unauthorized Practice of Law
  • Rule 5.6 Restrictions on Right to Practice
  • Rule 5.7 Responsibilities Regarding Law-related Services
• Chapter 6: Public Service
  • Rule 6.1 Pro Bono Publico Representation
  • Rule 6.2 Accepting Court Appointments
  • Rule 6.3 Membership in Legal Services Organization
  • Rule 6.4 Law Reform Activities Affecting Client Interests
• Chapter 7: Information about Legal Services
  • Rule 7.1 Communications Concerning a Lawyer's Services
  • Rule 7.2 Advertising and Other Communications Not Directed to Specifically Identified Recipients
  • Rule 7.3 Solicitation and Other Communications Directed to Specifically Identified Recipients
  • Rule 7.4 Communication of Fields of Practice
  • Rule 7.5 Firm Names and Letterheads
  • Rule 7.6 Intermediary Organizations
• Chapter 8: Maintaining the Integrity of the Profession
  • Rule 8.1 Bar Admission and Disciplinary Matters
  • Rule 8.2 Judicial and Legal Officials
  • Rule 8.3 Reporting Professional Misconduct
  • Rule 8.4 Misconduct
  • Rule 8.5 Disciplinary Authority; Choice of Law
• Transition Rules Governing Implementation of Tennessee Rules of Professional Conduct
•  

COMMENTS

Definition of “Firm”

[1] For purposes of the Rules of Professional Conduct, the term “firm” includes lawyers in a private firm, and lawyers in the legal department of a corporation or other organization, or in a legal services organization. See RPC 1.0(d) (defining “Firm” or “Law Firm”). Whether two or more lawyers constitute a firm within this definition can depend on the specific facts. For example, two practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm. However, if they present themselves to the public in a way suggesting that they are a firm or conduct themselves as a firm, they should be regarded as a firm for the purposes of the Rules. The terms of any formal agreement between associated lawyers are relevant in determining whether they are a firm, as is the fact that they have mutual access to information concerning the clients they serve. Furthermore, it is relevant in doubtful cases to consider the underlying purpose of the Rule that is involved. A group of lawyers could be regarded as a firm for purposes of the rule that the same lawyer should not represent opposing parties in litigation, while it might not be so regarded for purposes of the rule that information acquired by one lawyer is attributed to the other.

[2] With respect to the law department of an organization, there is ordinarily no question that the members of the department constitute a firm within the meaning of the Rules of Professional Conduct. However, there can be uncertainty as to the identity of the client. For example, it may not be clear whether the law department of a corporation represents a subsidiary or an affiliated corporation, as well as the corporation by which the members of the department are directly employed. A similar question can arise concerning an unincorporated association and its local affiliates.

[3] Similar questions can also arise with respect to lawyers in legal services organizations. Lawyers employed in the same unit of a legal service organization constitute a firm, but not necessarily those employed in separate units. As in the case of independent practitioners, whether the lawyers should be treated as associated with each other can depend on the particular rule that is involved and on the specific facts of the situation.

Principles of Imputed Disqualification

[4] The rule of imputed disqualification stated in paragraph (a) recognizes the community of interest and shared loyalty presumed to exist among lawyers who are associated in a law firm. Paragraph (a) operates only among the lawyers currently associated in a firm. When a lawyer moves from one firm to another, the situation is governed by paragraphs (b), (c), and (d).

Lawyers Moving Between Firms

[5] When a lawyer who is associated in a firm leaves the firm, the question of whether a lawyer should undertake representation adverse to clients of the former firm is more complicated. There are several competing considerations. First, the client previously represented by the former firm must be reasonably assured that the principle of loyalty to the client is not compromised and that confidential information related to the representation will not be used to the client’s disadvantage. Second, the rule should not be cast so broadly as to preclude other persons from having reasonable choice of legal counsel. Third, the rule should not unreasonably hamper lawyers from forming new associations and taking on new clients after having left a previous association. In this connection, it should be recognized that today many lawyers practice in firms, that many lawyers to some degree limit their practice to one field or another, and that many move from one association to another several times in their careers. If the concept of imputation were applied with unqualified rigor, the result would be radical curtailment of the opportunity of lawyers to move from one practice setting to another and of the opportunity of clients to change counsel.

[6] Paragraphs (a) and (b) govern the vicarious disqualification of a law firm in the situation in which a lawyer leaves the firm and continues or undertakes the representation of a client previously represented by the firm, the firm is no longer representing the client, and lawyers who have remained in the firm are asked to undertake a representation materially adverse to the firm’s former client. If the new matter is substantially related to a matter in which the firm previously represented the client, the firm, absent the former client’s consent, will be precluded by paragraph (a) from undertaking the representation if any lawyer remaining in the firm would be precluded by Rule 1.9(a) from doing so because the lawyer had participated in the client’s prior representation. Alternatively, paragraph (b) precludes the firm from undertaking the representation if any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter. If, on the other hand, no remaining lawyer participated in the client’s representation or possessed confidential information, the firm is permitted to undertake the representation even though it is materially adverse to the former client in a substantially related matter.

[7] Paragraph (c) addresses the situation in which a lawyer leaves one law firm and joins another firm that is representing a client with interests materially adverse to a client of the new lawyer’s former firm. The new lawyer may be personally disqualified from participating in the representation of some of the new firm’s clients because of his prior representation of, or acquisition of confidential information about, clients of his or her former law firm. With one limited exception discussed in paragraph (d), this personal disqualification will not be imputed to other lawyers in the personally disqualified lawyer’s new firm if they act reasonably to protect the confidentiality interests of the person being represented by the personally disqualified lawyer’s former firm.

[8] Paragraph (c) sets forth the measures that must be taken in to order protect the confidentiality interests of the client being represented by the personally disqualified lawyer’s former firm. Whether a firm’s screening procedures are effective to prevent the flow of information about the matter between the personally disqualified lawyer and the other lawyers in the firm is a question of fact. Factors to be considered include a written affirmation by the personally disqualified lawyer and the lawyers and firm personnel handling the matter in question that they are aware of and will abide by the screening procedures implemented by the firm; the structural organization of the law firm or office; the likelihood of contact between the personally disqualified lawyer and the lawyers handling the matter in question; and the existence of firm rules and a filing system that prevents unauthorized access to files with respect to the matter in question. Although this Rule does not require that the personally disqualified lawyer be prohibited from sharing in any fee generated by the representation in question, such a prohibition can be considered in determining the effectiveness of the screening procedures employed by the firm. The question to be asked in each case is whether the screening mechanism effectively reduces to an acceptable level the potential for misuse of information related to the representation of the personally disqualified lawyer’s former client.

[9] Paragraph (d) restates the rule of law established by Clinard v. Blackwood, 46 S.W.3d 177 (Tenn. 2001). In that case, the Tennessee Supreme Court held that screening mechanisms were generally not effective to avoid imputed disqualification of a law firm when a lawyer was perceived as “switching teams” in the course of pending litigation. Although the holding of Clinard was grounded in the prior standard from the Code of Professional Responsibility guarding against the “appearance of impropriety,” see Canon 9, EC 9-6, the Court also noted that its holding was necessary to further lawyer-client communications and to avoid the impression that the judiciary favors considerations of lawyer mobility over those of client confidentiality. Consequently, the Clinard rule continues under the present Rules. As was the case in Clinard, this narrow exception to paragraph (c) will vicariously disqualify the law firm only when the interests of a client of that firm are presently and directly adverse with those of a person who was formerly represented in substantial part by the disqualified lawyer.

[10] Where a lawyer has joined a private firm after having represented the government, the situation is governed by Rule 1.11(a) and (b). Where a lawyer represents the government after having served private clients, the situation is governed by Rule 1.11(c)(1). The individual lawyer involved is bound by the Rules generally, including Rules 1.6, 1.7, and 1.9(c).

DEFINITIONAL CROSS-REFERENCES

“Firm” and “Law Firm” See RPC 1.0(d)
“Material” and “Materially” See RPC 1.0(h)
“Reasonably” See RPC 1.0(j)
“Substantially” See RPC 1.0(m)