Migrating Lawyers and the Ethics of Conflict Checking

Lawyers often leave a practice setting and move to a new practice as their career paths advance or change. The incidence of lawyer migration has increased dramatically in the past decade, as law firms recruit more lateral hires and offer fewer partnership opportunities to their associates. As a lawyer prepares to change employment settings, her prospective new law firm asks her about the clients she has represented in the past. The new law firm must insist on this information, for without it the firm could not screen for possible conflicts of interest. Were the firm to hire a lawyer without such conflict screening, the new lawyer\u27s taint could disqualify the firm from important and lucrative work, and cause great harm to its clients. At the same time, the migrating lawyer owes her clients a strong confidentiality obligation under the Model Rules of Professional Conduct and the law of lawyering. When the prospective new firm asks for information about her clients, the lawyer faces a delicate quandary. Her career interests and her respect for the new firm\u27s conflict policies demand that she provide the requested information; her confidentiality duties seem to require her not to reveal her client\u27s information without their permission. Seeking such permission is often impossible or impractical. This Article investigates this difficult and widespread ethical issue. It begins by identifying five types of information which a new law firm is likely to want from a prospective hire, including information about the prior firm\u27s work but also financial data regarding the lawyer\u27s client billings. It then looks carefully at the Model Rules, the Restatement (Third) of the Law Governing Lawyers, and other authority for insights about which disclosures are lawful and which are not. It concludes that the available authority in fact permits surprisingly little information sharing, but argues that the authority ought to permit carefully defined disclosures which will not present hardships or embarrassment to the migrating lawyer\u27s clients. The Article offers distinctions in information-sharing which can protect the moving lawyer\u27s client confidences while allowing law firms to protect their clients\u27 interests, and offers protocols for performing conflict checks when a lawyer cannot reveal her client\u27s identities without causing them some harm. Finally, the Article offers several discrete changes to the Model Rules, which if adopted would provide clarity to lawyers and law firms engaged in the lateral hiring process

Shadow Lawyering: Nonlawyer Practice within Law Firms

Lawyers commonly associate with nonlawyers to assist in their performance of their lawyering tasks. A lawyer cannot know with confidence, though, whether the delegation of some tasks to a nonlawyer colleague might result in her assisting in the unauthorized practice of law, because the state of the law and the commentary about nonlawyer practice is so confused and incoherent. Some respected authority within the profession tells the lawyer that she may only delegate preparatory matters and must prohibit the nonlawyer from discussing legal matters with clients, or negotiating on behalf of clients. Other authority suggests that the lawyer may delegate a wide array of tasks as long as the lawyer supervises the work of the nonlawyer and accepts responsibility for it. A good faith lawyer reviewing the available commentary would find it difficult to achieve appropriate guidance for her work. This uncertainty affects not only lawyers working with paralegals and law clerks, but firms hiring out of state lateral associates and partners, and law school clinical programs engaged in transactional work. This Article articulates a framework for assessing delegation choices, a framework which is both coherent and sensible. The framework relies on insights about lawyering judgment and risk assessment, client informed consent, and unauthorized practice of law prophylaxis. Any delegation of work by a lawyer to a nonlawyer involves an exercise of the lawyer’s judgment about an appropriate balance of risk and efficiency, along with an eye toward the client’s informed choice about how to achieve the goals of the representation most efficiently. The prevailing unauthorized practice of law dogma prevents a client from seeking the most economical representation by only retaining a nonlawyer, but that dogma trusts lawyers to protect a client’s interests. With those considerations in place, this Article shows that the profession cannot, and in fact does not, deny the lawyer any categorical options in making delegation choices, except for those involving public court appearances. Aside from sending a nonlawyer to court, a lawyer may responsibly delegate any of her lawyering activities to a nonlawyer associate, subject to the prevailing conceptions of competent representation and subject to the lawyer’s retaining ultimate responsibility for the resulting work product and performance. Some commentary and some court opinions suggest a different answer to the questions addressed here, but those authorities do not withstand careful analysis. This Article shows that a more careful reading of the commentary and the court dicta supports the framework and the thesis offered here. Nonlawyers may not independently engage in activity which equates to the practice of law, if by “independently” we mean without supervision and oversight from a lawyer. That important and uncontroversial limitation, however, is the only categorical restriction on a lawyer’s discretion. A supervised nonlawyer may play a much more active and important role in a lawyer’s overall representation of her client than many have claimed. For the client, that is a very good result

Social Justice Implications for Retail CED

This short essay represents an extended abstract of some ideas prepared for a moderated discussion group entitled “CED Is Access to Justice” at the AALS Annual Meeting in San Diego in January, 2018. The Journal of Affordable Housing and Community Development Law has now published the collected abstracts from the discussants, including this piece. The aim of this essay is to identify the social justice implications and community-building qualities of what it calls “retail” community economic development (CED)—that is, transactional work on behalf of individual entrepreneurs seeking to establish successful new businesses, typically in underserved localities. Critics persuasively note the limitations of small-scale entrepreneurship efforts, especially compared to those of deeper, wider, community-driven campaigns. But, as the essay notes, there are important reasons not to neglect the individual startup enterprises, especially within neglected or under-resourced neighborhoods. The essay also notes the triage choices available to public interest or legal services agencies that may serve individual clients in distress who need litigators to represent them, or instead represent founders who need transactional attorneys. It is not self-evident that the former should take priority over the latter