A lawyer’s associations with other lawyers and staff can cause disqualification issues, even if the lawyer has not personally committed the misconduct.[1] Although the lawyer might not personally labor under any conflict of interest, for example, the lawyer’s association with a conflicted attorney or staff member might cause the conflict to be imputed to the lawyer. When this occurs, disqualification might follow.[2] Most frequently, two questions must be answered: (1) whether the jurisdiction permits the firm or agency to screen the disqualified lawyer; and (2) if so, whether the firm or agency timely implemented adequate screening measures.[3] Misconduct beyond conflicts of interest also can effectively be imputed to other members of the lawyer’s firm or agency,[4] and misconduct that causes a significant appearance of impropriety might also cause the entire firm or agency to be disqualified, as discussed below.

[1]     See generally, e.g., Derivi Const. & Architecture, Inc. v. Wong, 118 Cal. App. 4th 1268, 1276, 14 Cal. Rptr. 3d 329, 335 (Cal. Ct. App. 2004) (quoting Non-Punitive Segregation Inmates v. Kelly, 589 F. Supp. 1330, 1338–39 (E.D. Pa. 1984)) (concluding that lawyer’s association by marriage with a previously disqualified lawyer was insufficient to warrant disqualification: “‘Lawyers have many close relationships of which marriage is only one. Just as a court will not presume that lawyers will disclose confidences to their close friends, courts will not presume that lawyers will disclose confidences to their spouses . . . . [I]f courts regularly disqualified attorneys and their law firms from representing clients with interests adverse to clients represented by the attorney’s spouses’ law firms, courts would effectively preclude married lawyers from practicing in the same communities as their spouses’”); Model Rules R. 1.10(a) (2009) (“While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by” the conflict of interest rules.). For conflicts involving staff, see generally Cecile C. Edwards, Law Firm Disqualification and Nonlawyer Employees: A Proposal for a Consistent Analysis, 26 Miss. C. L. Rev. 163 (2007).

[2]     Zimmerman v. Mahaska Bottling Co., 19 P.3d 784, 791 (Kan. 2001) (granting the motion to disqualify after legal secretary moved from plaintiff’s firm to defendant’s firm, concluding that “nonlawyers [must] be treated in the same manner as lawyers when considering confidentiality issues”). But see Hayes v. Cent. States Orthopedic Specialists, Inc., 51 P.3d 562, 569 (Okla. 2002) (declining to follow Zimmerman and holding “that . . . before being disqualified for having hired a non-lawyer employee from its opponent, the hiring firm should be given the opportunity to prove that the non-lawyer has not revealed client confidences to the new employer and has been effectively counseled and screened from doing so. If such proof is made to the court’s satisfaction, the court should deny the motion to disqualify the non-lawyer’s new firm”). Even if the disqualified lawyer is not a member of the lawyer’s firm, the lawyer might still be disqualified if the lawyer served in a co-counsel role with the disqualified lawyer. See Freivogel on Conflicts, Co-Counsel/Common Interest; Paul R. Taskier & Alan H. Casper, Vicarious Disqualification of Co-Counsel Because of “Taint,” 1 Geo. J. Legal Ethics 155 (1987). Similarly, a lawyer might be disqualified as a result of a joint defense agreement, unless the agreement explicitly waives the disqualification remedy. See, e.g., In re Shared Memory Graphics LLC, 659 F.3d 1336, 1342 (Fed. Cir. 2011) (upholding advance waiver); United States v. Henke, 222 F.3d 633, 637 (9th Cir. 2000).

[3]     See [posts discussing law firms and screening].

[4]     Courts do not necessarily refer to the doctrine of imputation in this context, but to inflict maximum punishment or deterrence for the lawyer’s misconduct, courts occasionally disqualify the lawyer’s entire firm.

[Source: Keith Swisher, The Practice and Theory of Lawyer Disqualification, 27 Geo. J. Legal Ethics 71 (2014)]