伦理意见255
Use of Former Firm Lawyer on a Contract Basis
A law firm and a former firm lawyer employed by the firm by contract on a case-by-case basis are 不 regarded as a single entity for conflicts purposes so long as clients of the firm are accurately informed about the nature of the relationship between the firm and the contract lawyer and so long as no impression is created that there is a continuing relationship between the firm and the lawyer.
适用的规则
- 规则1.5(e)(费用分摊)
- 规则1.7(b)(4) (Conflicts Created by Lawyer’s Own Interests)
- 规则1.10(a)(推定取消资格)
- 规则7.1(a) (Communications Regarding a Lawyer’s Services)
调查
The Inquirer is a law firm (the Firm) that is engaged in the practice of law in the District of Columbia and is incorporated under the D.C. 专业公司法. 一位股东靠谱的滚球平台, 我们称他为B, is terminating his employment agreement with the Firm and his general association with the Firm as a practicing lawyer, although he will remain a shareholder in the Firm (as permitted by D.C. Code § 29-608) unless and until his shares are bought out by the Firm. B将不再, 然而, 公司的任何利润或亏损, and his name will 不 appear in the Firm’s letterhead or in any lists of Firm lawyers in Martindale-Hubbell or similar publications.
B将成为X公司的高级职员, but his position with 公司 X will 不 involve the provision of legal services. 公司 X will sublease space from the Firm and B will occupy that subleased space. The sublease contains a provision obligating 公司 X and its employees, 包括B, to refrain from listening to or examining matters pertaining to firm clients or firm 业务. The Firm has also established a screening system and taken other steps to assure that no confidential information of the Firm or its clients is made available, 未经授权, 给X公司或给B公司. 除了, B will be excluded from the Firm’s conflict clearance system and will thus 不 have access to information about new client matters of the Firm.
Because of B’s expertise in a specialized area of the law in which the Firm will continue to practice, 公司考虑与B达成一项安排, X公司已同意的, in which it proposes to employ B from time to time, 作为独立承包商, to assist the Firm as a lawyer or expert witness in providing legal services to the Firm’s clients. The Firm and B contemplate entering into a general contract, under which B would agree to consider serving in particular matters as a contract attorney (designated as “special counsel”) or as an expert witness, or individual matter-specific contracts on each matter on which B is retained by the Firm. B will 不 be guaranteed any particular amount of payments from the Firm.
The Firm also proposes to include 在宣传材料和信件中 to clients representations that B’s services are available to the Firm in his field of expertise when such services may be ethically provided and subject to his obligations to 公司 X.
基于这些事实, the Firm requests our advice as to (1) whether the arrangements it contemplates will result in imputation to the Firm under 规则1.10 of any disqualification of B flowing from his status as an executive of 公司 X in matters in which B is 不 assisting the firm 作为独立承包商; and (2) whether the representations that the Firm intends to make in promotional letters to clients are consistent with 规则7.1.
讨论
When B becomes an employee of 公司 X, he will 不 be acting as a lawyer for 公司 X. 规则1的大部分规定.7, 因此, would 不 apply to work done by B as a contract lawyer for the Firm because they are triggered by a lawyer representing clients in more than one matter. However, B’s position with 公司 X could result in B’s disqualification, under 规则1.7(b)(4),1 from representing a client in a situation in which his professional judgment on behalf of that client would, 或者有可能, be adversely affected by B’s responsibilities to 公司 X or his interest in 公司 X created by his high-level executive position.
In any case in which B would be disqualified from representing a client under 规则1.7(b)(4) because of his responsibilities to or interest in 公司 X, the Firm clearly would also be disqualified under 规则1.10(a) if B were associated with the Firm in that representation as a contract lawyer.2 The question posed by the 调查 is whether the Firm’s contemplated relationship with B is a sufficiently ongoing alliance or association to impute to the Firm B’s disqualifications even on Firm matters on which B is 不 working as a contract lawyer.
我们不这么认为. 当然, both this Committee and the ABA Standing Committee on Ethics and Professional Responsibility have held that a continuing “of counsel” relationship between a lawyer and a firm or a continuing relationship between two firms (as in the case of a “correspondent” law firm) result in the lawyer and the Firm, 或者这两家公司, being treated as a single entity for conflicts purposes. 看到 D.C. 意见没有. 192 (May 17, 1988); ABA Formal 意见没有. 84-351(1984年10月20日). 但, 在我们看来, the association of a lawyer with a firm on an ad hoc, case-by-case basis does 不 create that kind of continuing relationship, 根据第1节触发归咎.10 of the individual lawyer’s disqualifications to the firm, except with respect to the individual matters on which the lawyer is associated with the firm—so long as the firm does 不 create the impression among its clients or the public at large that such a continuing relationship exists.
Here, B will 不 be included on the Firm’s letterhead or in other listings of firm lawyers. He will be screened from confidential information about Firm clients and matters on which he is 不 employed 作为独立承包商. And promotional materials and letters to clients that mention his availability will make clear that he is available to work on specific matters on a case-by-case basis and that he does 不 have a continuing relationship with the Firm. We believe these steps are sufficient to avoid a general imputation of B’s disqualifications to the Firm. 看到 美国靠谱的滚球平台协会正式意见88-356. 16, 1988).
然而，我们还要提出一个警告. We believe that the term “special counsel” should 不 be used to describe B’s relationship to the Firm. While the term might be appropriately thought to de不e a relationship for the particular case only, we 不e that the term “special counsel” is also used by many law firms more or less interchangeably with terms such as “counsel” and “of counsel,来命名一段持续的关系. 看到 美国靠谱的滚球平台协会正式意见90-357(1990年5月10日). While it may be true that all these terms have an evolving rather than a fixed meaning (看到 D.C. 意见没有. 151(四月十六日), 1985)), we think that the Firm in this case would be well-advised to refer to B as a “consultant” or “contract lawyer” rather than a “special counsel.”
The same caveat applies to the second question raised by the 调查. 我们认为没有违反第7条规则.13 in the Firm’s plans to describe for prospective clients, 在宣传材料和信件中, the availability of B as a contract lawyer or expert witness in particular cases. 这里的关键是充分和准确的披露. As the ABA Committee had occasion to observe recently in the context of discussing networks or alliances between law firms, “这很关键。, no matter what words are used to describe the relationship between firms, for clients to receive information that will tell them the exact nature of the relationship and the extent to which resources of a不her firm will be available in connection with the client’s retention of the firm that is claiming the relationship.” ABA Formal Opinion 94-388 (December 5, 1994). 规则7的任务规定.1 can be met only if a full description of the relationship is provided to all prospective and present clients for whom the relationship may be relevant. Id.
同样的原则也适用于此, and we conclude that the planned representations by the Firm as to its relationship with B are adequate to assure compliance with 规则7.1. 我们再次推荐, 然而, that the Firm 不 use the term “special counsel” to describe B’s relationship to the Firm.
调查没有. 95-2-3
通过:1995年3月21日
1. 规则1.第7(b)(4)款规定靠谱的滚球平台不得, 未经客户同意, represent a client where “the lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party or the lawyer’s own financial, 业务, 财产, 或者个人兴趣.”
2. Since B will be employed and compensated by the Firm, this situation is different from the common one in which two lawyers in different firms are co-counsel in a case. 在这种情况下, conflicts of one lawyer are 不 imputed to the other, at least in the absence of an exchange of confidential information. E.g.Richers v. 沼泽 & McLennon Group associates, 459 N.W.2d 478 (Iowa 1990); Brennan’s Inc. v. 布伦南餐厅公司., 590 F.2d 168(第5章. 1979).
3. 规则7.1 bars false or misleading communications about a lawyer’s services.
