United States District Court

Northern District Of Illinois
Local Rules
LR83.51.10 Imputed Disqualification: General Rule
(a) No lawyer associated with a firm shall represent a client when the lawyer knows or reasonably should know that another lawyer associated with that firm would be prohibited from doing so by LR83.51.7, LR83.51.8(c), or LR83.51.9, except as permitted by sections (b), (c), or (d) of this rule or by LR83.51.11 or LR83.51.12.

(b) When a lawyer becomes associated with a firm, the firm may not represent a person in a matter that the firm knows or reasonably should know is the same or substantially related to a matter in which the newly associated lawyer, or a firm with which that lawyer was associated, had previously represented a client whose interests are materially adverse to that person unless:

(1) the newly associated lawyer has no information protected by LR83.51.6 or LR83.51.9 that is material to the matter; or

(2) the newly associated lawyer is screened from any participation in the matter and is apportioned no specific share therefrom.

(c) When a lawyer has terminated an association with a firm, the firm may thereafter represent a person with interests materially adverse to those of a client represented by the formerly associated lawyer if:

(1) the matter is not the same or substantially related to that in which the formerly associated lawyer represented the client; and

(2) no lawyer remaining in the firm has information protected by this rule, or LR83.51.6.

(d) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in LR83.51.7.

(e) For purposes of this rule LR83.51.11, and LR83.51.12, a lawyer in a firm will be deemed to have been screened from any participation in a matter if:

(1) the lawyer has been isolated from confidences, secrets, and material knowledge concerning the matter;

(2) the lawyer has been isolated from all contact with the client or any agent, officer or employee of the client and any witness for or against the client;

(3) the lawyer and the firm have been precluded from discussing the matter with each other; and

(4) the firm has taken affirmative steps to accomplish the foregoing.

Committee Comment. Definition of “Firm”. For purposes of the rules of professional conduct, the term “firm” includes lawyers in a private firm and lawyers in the legal department of a corporation or other organization or in a legal services organization. Whether two or more lawyers constitute a firm within this definition can depend on the specific facts. For example, two practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm. However, if they present themselves to the public in a way suggesting that they are a firm or conduct themselves as a firm, they should be regarded as a firm for the purposes of the rules. The terms of any formal agreement between associated lawyers are relevant in determining whether they are a firm, as is the fact that they have mutual access to information concerning the clients they serve. Furthermore, it is relevant in doubtful cases to consider the underlying purpose of the rule that is involved. A group of lawyers could be regarded as a firm for purposes of the rule that the same lawyer should not represent opposing parties in litigation, while it might not be so regarded for purposes of the rule that information acquired by one lawyer is attributed to another.

With respect to the law department of an organization, there is ordinarily no question that the members of the department constitute a firm within the meaning of the rules of professional conduct. However, there can be uncertainty as to the identity of the client. For example, it may not be clear whether the law department of a corporation represents a subsidiary or an affiliated corporation, as well as the corporation by which the members of the department are directly employed. A similar question can arise concerning an unincorporated association and its local affiliates.

Similar questions can also arise with respect to lawyers in legal aid. Lawyers employed in the same unit of a legal service organization constitute a firm, but not necessarily those employed in separate units. As in the case of independent practitioners, whether the lawyers should be treated as associated with each other can depend on the particular rule that is involved, and on the specific facts of the situation.

Where a lawyer has joined a private firm after having represented the government, the situation is governed by LR83.51.11(a) and (b); where a lawyer represents the government after having served private clients, the situation is governed by LR83.51.11(c)(1). The individual lawyer involved is bound by the rules generally, including LR83.51.6, LR83.51.7, and LR83.51.9.

Different provisions are thus made for movement of a lawyer from one private firm to another and for movement of a lawyer between a private firm and the government. The government is entitled to protection of its client confidences and, therefore. to the protections provided in LR83.51.6, LR83.51.9, and LR83.51.11. However, if the more extensive disqualification in this rule were applied to former government lawyers, the potential effect on the government would be unduly burdensome. The government deals with all private citizens and organizations and, thus, has a much wider circle of adverse legal interests than does any private law firm. In these circumstances, the government's recruitment of lawyers would be seriously impaired if this rule were applied to the government. On balance, therefore, the government is better served in the long run by the protections stated in LR83.51.11.

Definition of “Associated”. As used in this rule the term “associated,” e.g., “newly associated lawyer,” “a lawyer becomes associated with a firm,” shall be read to cover all forms of association between the lawyer and the firm, including, but not restricted to partner, associate, and of counsel.

Principles of Imputed Disqualification. The rule of imputed disqualification stated in section (a) gives effect to the principle of loyalty to the client as it applies to lawyers who practice in a law firm. Such situations can be considered from the premise that a firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client, or from the premise that each lawyer is vicariously bound by the obligation of loyalty owed by each lawyer with whom the lawyer is associated. Section (a) operates only among the lawyers currently associated in a firm. When a lawyer moves from one firm to another, the situation is governed by LR83.51.9(b) and section (b) of this rule.

Section (b) of this rule operates to permit a law firm, under certain circumstances, to represent a person with interests directly adverse to those of a client represented by a lawyer who formerly was associated with the firm. The Rule applies regardless of when the formerly associated lawyer represented the client. However, the law firm may not represent a person with interests adverse to those of a present client of the firm, which would violate LR83.51.7. Moreover, the firm may not represent the person where the matter is the same or substantially related to that in which the formerly associated lawyer represented the client and any other lawyer currently in the firm has material information protected by LR83.51.6 and LR83.51.9(c).