Inside Track: Ethical Dilemma: Handling Conflicts with Co-counsel:

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  • April
    15
    2020

    Ethical Dilemma: Handling Conflicts with Co-counsel

    Conflicts are imputed among all lawyers at a single firm. But what happens to the conflicts if lawyers from different firms join together as co-counsel in a case?

    Timothy J. Pierce

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    April 15, 2020 How does a lawyer’s conflicts impute to other lawyers? If two lawyers from different firms join together to represent one plaintiff and a conflict at one of the firms is discovered, does the co-counsel also have that conflict?

    Question

    I am co-counseling with a lawyer from a different firm, representing the plaintiff in a medical malpractice action. The suit has been filed, and we are well into discovery, but now a problem has arisen.

    My co-counsel’s law firm hired an associate a few months ago, and it turns out that the associate at a prior firm represented the defendant doctor in a licensing matter that relates to the malpractice case. Apparently, co-counsel’s firm missed it in conflict checking the associate’s hire.

    Now opposing counsel has discovered the situation and is demanding that we both withdraw, or they will file a disqualification motion. I understand that co-counsel has a conflict, but is that conflict imputed to me?

    Are conflicts of co-counsel imputed to each other?

    Need Ethics Advice?

    As a State Bar member, you have access to informal guidance and help in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys.

    Ethics Hotline: To informally discuss an ethics question, contact State Bar ethics counselors org tpierce wisbar Timothy Pierce or org akaiser wisbar Aviva Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m to 4 p.m.

    Answer

    In order to understand this question, it is necessary to understand how one lawyer’s conflicts are imputed to other lawyers.

    Tim Pierceorg tpierce wisbar Tim Pierce is ethics counsel with the State Bar of Wisconsin. Reach him by org tpierce wisbar email or through the Ethics Hotline at (608) 229-2017 or (800) 254-9154.

    Within a private law firm, most current and former client conflicts of one lawyer are imputed to all the other lawyers in the firm pursuant to SCR 20:1.10(a). This rule means that for most conflicts analysis, a private law firm is effectively just one lawyer, regardless of the actual size of the firm.

    On these facts, when co-counsel’s firm hired the associate, the firm hired a lawyer who had represented the defendant doctor on a substantially related matter at a prior firm, and thus had a former client conflict pursuant to SCR 20:1.9(a). The newly hired lawyer brought their former client conflict into the firm and imputed it to all the other lawyers in the firm pursuant to SCR 20:1.10(a).1 So, co-counsel clearly has a conflict and must withdraw as written signed informed consent to the conflict will not be forthcoming from the defendant doctor.

    What about a Co-counsel?

    Neither the letter of comments of SCR 20:1.10 explain, however, whether the conflicts of co-counsel are imputed to each other.

    Clearly, co-counsel are not “associated in a firm,” so the black letter of the rule seems to indicate that the answer is no. That answer is not explicit, however, and disqualification motions are brought alleging that one lawyer’s conflict should result in removal of co-counsel.

    One case that considered the question is Brown v. Eighth Judicial Dist. Court,2 on which these facts are loosely based. The Brown court refused to disqualify a lawyer based on the conflict of co-counsel, stating:

    We are mindful of the quandary the district court faced in this case: allowing disqualification of co-counsel without requiring proof that confidences were shared tends toward automatic disqualification, based on re-imputation of an imputed conflict, while requiring such proof introduces all the problems associated with screening that are identified in Ciaffone (difficulty litigating the issue, uncertainty about the effectiveness of screening, the monetary incentive involved in breaching the screen, the fear of disclosing privileged information in the course of proving an effective screen, and the possibility of accidental disclosures). We conclude that requiring proof of a reasonable probability that counsel actually acquired privileged, confidential information strikes the appropriate balance in disqualification cases such as this.

    In light of the fact that there was no reasonable probability that Mehesan acquired confidential information, and the fact that Dr. Thalgott would not be prejudiced by Mehesan's continued representation of the Browns while the Browns would be greatly prejudiced by his removal, Mehesan's disqualification was not warranted under Cronin. Consequently, we conclude the district court manifestly abused its discretion by disqualifying Mehesan as counsel for petitioners under these circumstances.

    The court’s holding that there was no “re-imputation of an imputed conflict” to co-counsel is consistent with other cases, as is the court’s holding that, if there is a reasonable probability or proof that the conflict lawyer actually imparted relevant, protected information to co-counsel, then both lawyers would be disqualified.3 Section 123 of the Restatement (Third) of the Law Governing Lawyers provides further guidance:

    c(iii). Associated lawyers or law firms. Two or more lawyers or law firms might associate for purposes of handling a particular case. A common example is a lawyer who appears as local counsel in litigation principally handled by another firm. Each lawyer must comply with the rules concerning conflict of interest, and other lawyers in their respective firms are governed by the rules of imputation. However, a conflict imputed within a firm does not extend by imputation to lawyers in another firm working on another matter (emphasis added).

    So co-counsel do not impute conflicts to each other.

    However, in situations where a conflicted lawyer shared relevant confidential information with co-counsel, both lawyers may be disqualified.

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    Endnotes

    1 On these facts, the associate’s services were not “minor and isolated,” so the conflict cannot be screened off, pursuant to SCR 20:1.10(a)(2). Even if the conflict of a lateral hire may properly be screened to defeat the imputation of a conflict, screening measures are not effective unless timely put in place. See, e.g., Nelson v Green Builders, Inc., 823 F.Supp. 1439 (E.D. Wis. 1993).

    2 Brown v. Eighth Judicial Dist. Court, 14 P.3d 1266, (Nev. 2000).

    3 See Brennan's Inc. v. Brennan's Rests. Inc., 590 F.2d 168 (5th Cir. 1979); Richers v. Marsh & McLennan Group Assocs., 459 N.W.2d 478 (Iowa 1990); Commonwealth v. Maricle, 10 S.W.3d 117 (Ky. 1999).




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