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Arkansas Legal Ethics

1.10   Rule 1.10 Imputed Disqualification: General Rule

1.10:100   Comparative Analysis of Arkansas Rule

• Primary Arkansas References: AR Rule 1.10
• Background References: ABA Model Rule 1.10, Other Jurisdictions
• Commentary:

1.10:101      Model Rule Comparison

By a Per Curiam of April 16, 1990, 302 Ark. 615, 788 S.W. 2d 462 (1990), Arkansas adopted the amendments to Rules 1.9 and 1.10 as added to the Model Rules in 1987 and 1989. However, because Arkansas imputes disqualification of the attorney-witness to the entire law firm, Rule 1.10(a) includes a reference to Rule 3.7. See 3.7:300.

1.10:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

1.10.103      Definition of "Firm"

See Comment [1] to Rule 1.10; see 0.4:430.

1.10:200   Imputed Disqualification Among Current Affiliated Lawyers

• Primary Arkansas References: AR Rule 1.10(a)
• Background References: ABA Model Rule 1.10(a), Other Jurisdictions
• Commentary: ABA/BNA — 51:2001, ALI-LGL — 203, Wolfram — 7.6

The underlying premise of Rule 1.10(a) is that a law firm is a single entity for the purpose of the rules governing loyalty to a client. If an attorney is barred from representation to ensure loyalty, all members of the firm are barred. See 1.9:300. Whether imputed disqualification occurs when opposing attorneys are in separate law firms but the firm shares a common partner is unanswered. See Skokos v. Gray, 318 Ark. 571, 886 S.W. 2d 618 (1994).

When one member of a firm briefly represents a debtor in a commercial transaction, the firm itself is barred from subsequently representing the creditor in the same transaction. However, such a conflict of interest may not be grounds to set aside a judgment entered against the debtor. Womack v. First State Bank of Calico Rock, 21 Ark. App. 33, 728 S.W.2d 194 (1987). Compare Burnette v. Morgan, 303 Ark. 150, 794 S.W.2d 145 (1990) (judgment for plaintiff set aside because of conflict of interest).

For a general discussion, see Thomas D. Morgan, Screening the Disqualified Lawyer: The Wrong Solution to the Wrong Problem, 10 U. ARK. LITTLE ROCK L.J. 37 (1987).

1.10:300   Removing Imputation by Screening

• Primary Arkansas References: AR Rule 1.10
• Background References: ABA Model Rule 1.10, Other Jurisdictions
• Commentary: ABA/BNA — 51:2001, ALI-LGL — 204, Wolfram — 7.6

Arkansas does not permit screening.

Shortly before a medical malpractice trial, a legal secretary terminated her employment with plaintiff's firm and became secretary for the defendant's firm, and in particular for the attorney handling the case. Because the defense firm erected a "Chinese wall" around her to ensure that she had no contact with the case and since the plaintiff's firm had cautioned her not to disclose confidential information, the defense firm was not disqualified. Herron v. Jones, 276 Ark. 493, 637 S.W.2d 569 (1982).

1.10:400   Disqualification of Firm After Disqualified Lawyer Departs

• Primary Arkansas References: AR Rule 1.10(b)
• Background References: ABA Model Rule 1.10(b), Other Jurisdictions
• Commentary: ABA/BNA — 51:2008, ALI-LGL — 204, Wolfram — 7.6.3

The Arkansas Rule would permit the firm to continue to represent the client after the disqualified attorney leaves the firm, provided the firm can affirmatively demonstrate that it did not receive any confidential information and is in no way tainted.

1.10:500   Client Consent

• Primary Arkansas References: AR Rule 1.10(c)
• Background References: ABA Model Rule 1.10(c), Other Jurisdictions
• Commentary: ABA/BNA — 51:2001, ALI-LGL — 202, Wolfram —— 7.2, 7.3

Arkansas has no case law or authority on this topic.