Migrating Lawyers and the Ethics of Conflict Checking

Abstract

Lawyers often leave a practice setting and move to a new practice as their career paths advance or change. The incidence of lawyer migration has increased dramatically in the past decade, as law firms recruit more lateral hires and offer fewer partnership opportunities to their associates. As a lawyer prepares to change employment settings, her prospective new law firm asks her about the clients she has represented in the past. The new law firm must insist on this information, for without it the firm could not screen for possible conflicts of interest. Were the firm to hire a lawyer without such conflict screening, the new lawyer's "taint" could disqualify the firm from important and lucrative work, and cause great harm to its clients. At the same time, the migrating lawyer owes her clients a strong confidentiality obligation under the Model Rules of Professional Conduct and the law of lawyering. When the prospective new firm asks for information about her clients, the lawyer faces a delicate quandary. Her career interests and her respect for the new firm's conflict policies demand that she provide the requested information; her confidentiality duties seem to require her not to reveal her client's information without their permission. Seeking such permission is often impossible or impractical. This Article investigates this difficult and widespread ethical issue. It begins by identifying five types of information which a new law firm is likely to want from a prospective hire, including information about the prior firm's work but also financial data regarding the lawyer's client billings. It then looks carefully at the Model Rules, the Restatement (Third) of the Law Governing Lawyers, and other authority for insights about which disclosures are lawful and which are not. It concludes that the available authority in fact permits surprisingly little information sharing, but argues that the authority ought to permit carefully defined disclosures which will not present hardships or embarrassment to the migrating lawyer's clients. The Article offers distinctions in information-sharing which can protect the moving lawyer's client confidences while allowing law firms to protect their clients' interests, and offers protocols for performing conflict checks when a lawyer cannot reveal her client's identities without causing them some harm. Finally, the Article offers several discrete changes to the Model Rules, which if adopted would provide clarity to lawyers and law firms engaged in the lateral hiring process.