Conflict of Interest Trail: From Law Clerk to Associate

The Texas Bar Ethics Committee in August 2014 analyzed whether the Texas Disciplinary Rules of Professional Conduct require a law firm to withdraw from representing a client if the law firm hires a new associate who, prior to becoming licensed to practice, was employed as a law clerk for the law firm representing the opposing party and helped provide services for the opposing party with respect to the lawsuit.

The Committee decided that in this situation the law firm would have to withdraw from the case. The Committee stated that even with the client’s consent, the conflict could not be cured because the associate could not reasonably be expected to represent the client at his new firm without the representation being materially affected by his obligations to maintain the required confidentiality owed to his previous employer and client. Furthermore, the Committee stated that due to Rule 1.06, which deals with conflict of interest, the law firm could not continue to represent the client even if they did not allow the associate to work on the case. Specifically, under Rule 1.06(f), “[i]f a lawyer would be prohibited by this Rule from engaging in particular conduct, no other lawyer while a member or associated with that lawyer’s firm may engage in that conduct.”

The analysis also focused on Rule 1.06(b)(2) which states that representation of a client is prohibited when the representation would be limited due to the lawyer’s responsibilities to a third person or by the lawyer’s own interest. In this case Rule 1.06(b)(2) would be violated because the representation of the client would be limited in two different aspects.  The Committee said that because the associate has a duty to maintain the confidentiality of information acquired from his former employer’s client he would not be able to use all information at his disposal to further the interests of his new employer’s client. In addition, the associate’s interest in avoiding claims for misuse of the confidential information he acquired from his earlier employer would affect his representation of his new employer’s client.

As a result of this Texas Opinion 644, law firms should pay close attention to where their associates held prior law clerk positions and to what extent they provided services to clients, in order to make sure that no conflict of interests arise. That being said, it is likely that a law firm will not need to know every single case an associate worked on prior to being hired at their firm, as long as they have a procedure for their associates to disclose when they have worked with an opposing client at a different firm.

Click here to read more. For Texas Opinion 644, click here.

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