Colo. RPC 1.10

History

Source: Entire Appendix repealed and readopted April 12, 2007, effective January 1, 2008. COMMENT GENERAL RULE Definition of ‘ ‘Firm’ ’ [1] For purposes of the Rules of Profes- sional Conduct, the term ‘‘firm’’ denotes law- yers in a law partnership, professional corpora- tion, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organiza- tion. See Rule 1.0(c). Whether two or more lawyers constitute a firm within this definition can depend on the specific facts. See Rule 1.0, Comments [2] - [4]. Principles of Imputed Disqualification [2] The rule of imputed disqualification stated in paragraph (a) gives effect to the prin- ciple of loyalty to the client as it applies to lawyers who practice in a law firm. Such situa- tions 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. Paragraph (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 Rules 1.9(b) and 1.10(b). [3] The rule in paragraph (a) does not pro- hibit representation where neither questions of client loyalty nor protection of confidential in- formation are presented. Where one lawyer in a firm could not effectively represent a given cli- ent because of strong political beliefs, for ex- ample, but that lawyer will do no work on the case and the personal beliefs of the lawyer will not materially limit the representation by others in the firm, the firm should not be disqualified. On the other hand, if an opposing party in a case were owned by a lawyer in the law firm, and others in the firm would be materially lim- ited in pursuing the matter because of loyalty to that lawyer, the personal disqualification of the lawyer would be imputed to all others in the firm. [4] The rule in paragraph (a) also does not prohibit representation by others in the law firm where the person prohibited from involvement in a matter is a nonlawyer, such as a paralegal or legal secretary. Nor does paragraph (a) pro- hibit representation if the lawyer is prohibited from acting because of events before the person became a lawyer, for example, work that the person did while a law student. Such persons, however, ordinarily must be screened from any personal participation in the matter to avoid communication to others in the firm of confi- dential information that both the nonlawyers and the firm have a legal duty to protect. See Rules 1.0(k) and 5.3. [5] Rule 1.10(b) 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 for- merly was associated with the firm. The Rule applies regardless of when the formerly associ- ated lawyer represented the client. However, the law firm may not represent a person with inter- ests adverse to those of a present client of the firm, which would violate Rule 1.7. 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 cur- rently in the firm has material information pro- tected by Rules 1.6 and 1.9(c). [6] Rule 1.10(c) removes imputation with the informed consent of the affected client or former client under the conditions stated in Rule 1.7. The conditions stated in Rule 1.7 require the lawyer to determine that the repre- sentation is not prohibited by Rule 1.7(b) and that each affected client or former client has given informed consent to the representation, confirmed in writing. In some cases, the risk may be so severe that the conflict may not be cured by client consent. For a discussion of the effectiveness of client waivers of conflicts that might arise in the future, see Rule 1.7, Com- ment [22]. For a definition of informed consent, see Rule 1.0(e). [7] Where a lawyer has joined a private firm after having represented the government, imputation is governed by Rule 1.11(b) and (c), not this Rule. Under Rule 1.11(d), where a lawyer represents the government after having served clients in private practice, nongovern- mental employment or in another government agency, former-client conflicts are not imputed to government lawyers associated with the indi- vidually disqualified lawyer. [8] Where a lawyer is prohibited from en- gaging in certain transactions under Rule 1.8, paragraph (k) of that Rule, and not this Rule, determines whether that prohibition also applies to other lawyers associated in a firm with the personally prohibited lawyer. ANNOTATION Law reviews. For article, ‘‘Private Screen- ing’’, see 38 Colo. Law. 59 (June 2009). For article, ‘‘Top 10 Things In-House Lawyers Need to Know about Ethics’’, see 45 Colo. Law. 59 (July 2016). Annotator’s note. Rule 1.10 is similar to Rule 1.10 as it existed prior to the 2007 repeal and readoption of the Colorado rules of profes- sional conduct. Relevant cases construing that provision have been included in the annotations to this rule. The purpose of this rule and rule 1.9 is to protect a client’s confidential communica- tions with his attorney. Funplex Partnership v. FDIC, 19 F. Supp. 2d 1202 (D. Colo. 1998). When an attorney associates with a law firm, the principle of loyalty to the client extends beyond the individual attorney and applies with equal force to the other attorneys practicing in the firm. People ex rel. Peters v. District Court, 951 P.2d 926 (Colo. 1998). The rule of imputed disqualification can be considered from the premise that a firm of at- torneys is essentially one attorney for purposes of the rules governing loyalty to the client, or from the premise that each attorney is vicari- ously bound by the obligation of loyalty owed by each lawyer in the firm. People ex rel. Peters v. District Court, 951 P.2d 926 (Colo. 1998). And the rule of imputed disqualification applies with equal force to court-appointed attorneys. People ex rel. Peters v. District Court, 951 P.2d 926 (Colo. 1998).