Sunday, October 29, 2006

Sixth Circuit Imputes Disqualification to Firm Using Michigan's Rule 1.9(a)

Posted by Alan Childress
Here is the ABA Journal's on-line report Friday of a Sixth Circuit decision Oct. 18 to disqualify a law firm for the successive conflict of interest that arose when one of its opponent's lawyers switched jobs laterally and joined the firm.  No screening was permitted to stop the lawyer's own obvious conflict [under Michigan's version of MR 1.9(a)] from disqualifying vicariously his new colleagues.  Some are arguing that the Sixth Circuit case is wrong because it failed to see that a Comment to 1.9(b) may permit screening or avoid firm-wide disqualification.  But BU's Nancy Moore (also Chief Reporter for the 'Ethics 2000' revisions), quoted in the story, is surely correct that those Comments refer to what is now 1.9(c) and just did not get its reference to the right rule updated as the revision was implemented.  [Rule 1.9(c) is about ending the imputed conflict once the tainted lawyer leaves his or her new firm, e.g., by firing.]  The Sixth Circuit may be wrong, but it isn't for the reason other people are saying in the story.  (I hope to give a follow-up assessment next week of why it still may be wrong, but invite your comments.)

Meanwhile, such a "migratory attorney" situation is exactly the subject we are covering right now in my PR class, and the case and controversy at least illustrate the point I made in the last class--no one gets this area at all.  Here we see so-called experts (not Moore, mind you, who seems to calmly correct that specific misciting) screaming about how the Sixth Circuit is off on the 'wrong' rule when to me it is clear that, in pertinent fact, the conflicted attorney did not exit his new firm.

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