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Thursday, November 05, 2009

Disclosure of Conflicts Information When Lawyers Move Between Law Firms

A new ABA opinion concludes that limited information related to a representation and necessary for lateral-hire conflict-checking may be communicated to the hiring firm without the candidate violating Rule 1.6. The opinion considers various exceptions to confidentiality under Rule 1.6(b), but concludes that they do not apply. Op. 09-455 (October 8, 2009) concludes that Rule 1.6(b)(6) -- disclosure of client information "necessary. . .to comply with other law" -- does not apply because "other" seems to mean "other than the Rules."
Op. 09-455 concludes, nonetheless, that certain limited information that is covered by Rule 1.6 may (unless there are other problems, such as actual harm to the client) be disclosed as necessary for lateral hire conflict-checking. The conclusion is based on the Rules being "rules of reason," on analogies to other ABA opinions and rule amendment, and (above all) because "disclosure of conflicts information otherwise protected by Rule 1.6 should be considered permissible as necessary to comply with the Rules." Put differently, public policy permits that which Rule 1.6(b)(6) addresses generally, but does not permit.
I think the ABA Model Rules should permit the disclosures permitted by Op. 09-455. However, the straightforward way to do that is to delete "other" from Model Rule 1.6(b)(6) (or otherwise make clear that "law" includes the Rules), rather than have a series of ABA opinions that have the same effect as such a rule amendment would.

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