New Jersey Legal Ethics
1.10 Rule 1.10 Imputed Disqualification: General Rule
1.10:100 Comparative Analysis of New Jersey Rule
• Primary New Jersey References: NJ Rule 1.10
• Background References: ABA Model Rule 1.10, Other Jurisdictions
• Commentary:
• NJ Commentary:
1.10:101 Model Rule Comparison
The New Jersey Supreme Court adopted ABA Model Rule 1.10 with two revisions. The first revision is the addition of RPC 1.10(d), a provision that is not included in the ABA Model Rule 1.10. RPC 1.10(d) prohibits any attorney who terminates an association with a firm, or any other attorneys with whom the terminated attorney subsequently becomes associated, from knowingly representing a client when there is a material risk of violating RPCs 1.6 or 1.9.
The second revision is the addition of RPC 1.10(e), a provision that is not included in the ABA Model Rule 1.10. RPC 1.10(e) generally allows for waivers except when prohibited by state law or regulation, such as the prohibition against a public entity waiving an attorney conflict of interest.
The ABA’s 1989 restructuring of Model Rule 1.10 conforms with the New Jersey Court’s approach to this issue. Compare the 1989 versions of Model Rule 1.10 with the 1983 versions. The ABA in effect adopted the New Jersey approach by incorporating a streamlined version of the 1983 formulation of Model Rule 1.10(b) into Model Rule 1.9. New Jersey’s RPCs, in contrast, retain the 1983 structure. See RPC 1.9, 1.10.
1.10:102 Model Code Comparison
There is no direct counterpart in the New Jersey RPCs.
1.10.103 Definition of "Firm"
A “firm” is any group of lawyers currently practicing in close association. See Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 217 (1988). See Section 24:1-1, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).
1.10:200 Imputed Disqualification Among Current Affiliated Lawyers
• Primary New Jersey References: NJ 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
• NJ Commentary:
In general, the preclusion of one lawyer from a representation because of a conflict of interest means that no other lawyer working at the same firm may undertake the representation. Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201(1988).
The initial question is whether any individual lawyer presently associated with a firm, a professional corporation, or some other practice group is disqualified from a representation because of a conflict of interest. If the answer is yes, then RPC 1.10(a) prohibits all of the other lawyers at the firm from engaging in the representation. See Section 24:1-1, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).
1.10:300 Removing Imputation by Screening
• Primary New Jersey References: NJ Rule 1.10
• Background References: ABA Model Rule 1.10, Other Jurisdictions
• Commentary: ABA/BNA § 51:2001, ALI-LGL § 204, Wolfram § 7.6
• NJ Commentary:
“Screening” a disqualified lawyer may enable a firm to avoid the effects of imputed disqualification only in certain limited circumstances: when a lawyer is disqualified by an appearance of impropriety (rather than an actual conflict) arising from prior government service, see RPC 1.11(b); when an associate changes firms after being involved in some type of “industry-wide” litigation such as toxic tort work, see Advisory Comm. Op. 525 (Apr. 5, 1984); and when a lawyer is disqualified solely because of a familial relationship with an attorney at the firm representing an opposing party, see Advisory Comm. Op. 600 (July 30, 1987). See Section 24:1-3, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).
1.10:400 Disqualification of Firm After Disqualified Lawyer Departs
• Primary New Jersey References: NJ 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
• NJ Commentary:
RPC 1.10(c) provides as follows:
When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer unless:
(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by RPC 1.6 and RPC 1.9(b) that is material to the matter.
When a firm is disqualified under paragraph (a) because a present associate is disqualified, the problem will not be cured by the departure of the associate. See Lawler v. Isaac, 249 N.J. Super. 11, 17-18 (App. Div. 1991), finding not only that the defendant’s law firm in a malpractice action had violated RPC 1.10(a) and RPC 1.10(c) by hiring an associate who had previously handled the case for the plaintiff’s law firm, but that it was disqualified from the case even though the associate had already left. See Section 24:3-2, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).
1.10:500 Client Consent
• Primary New Jersey References: NJ 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
• NJ Commentary:
RPC 1.10(e) permits a client or a former client to waive an imputed disqualification. The rule provides as follows:
A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in RPC 1.7 except where prohibited by law or regulation, such as the prohibition against a public entity waiving an attorney conflict of interest.
The client “affected” by a conflict is the lawyer’s former client pursuant to RPC 1.9, which is incorporated by reference into RPC 1.10. See Section 24:1-3, Michels, New Jersey Attorney Ethics (Gann Law Books, Newark, 2000).