Md. R. Att'y 19-301.10
Md. R. Att'y 19-301.10
COMMENT
Definition of "Firm--[1] A "firm is defined in Rule 19-301.0(d) (1.0). Whether two or more attorneys constitute a firm within this definition can depend on the specific facts. See Rule 19-301.0 (1.0), Comments [3]--[5]. An attorney is deemed associated with a firm if held out to be a partner, principal, associate, of counsel, or similar designation. An attorney ordinarily is not deemed associated with a firm if the attorney no longer practices law and is held out as retired or emeritus. An attorney employed for short periods as a contract attorney ordinarily is deemed associated with the firm only regarding matters to which the attorney gives substantive attention.
Principles of Imputed Disqualification--[2] The rule of imputed disqualification stated in section (a) gives effect to the principle of loyalty to the client as it applies to attorneys who practice in a law firm. Such situations can be considered from the premise that a firm of attorneys is essentially one attorney for purposes of the rules governing loyalty to the client, or from the premise that each attorney is vicariously bound by the obligation of loyalty owed by each attorney with whom the attorney is associated. Section (a) of this Rule operates only among the attorneys currently associated in a firm. When an attorney moves from one firm to another, the situation is governed by Rules 19-301.9(b) (1.9), 19-301.10 (b) (1.10) and 19-301.10 (c) (1.10).
[3] The rule in section (a) of this Rule does not prohibit representation where neither questions of client loyalty nor protection of confidential information are presented. Where one attorney in a firm could not effectively represent a given client because of strong political beliefs, for example, but that attorney will do no work on the case and the personal beliefs of the attorney 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 an attorney in the law firm, and others in the firm would be materially limited in pursuing the matter because of loyalty to that attorney, the personal disqualification of the attorney would be imputed to all others in the firm.
[4] The rule in section (a) of this Rule also does not prohibit representation by others in the law firm where the individual prohibited from involvement in a matter is a non-attorney, such as a paralegal or legal secretary. Nor does section (a) of this Rule prohibit representation if the attorney is prohibited from acting because of events before the individual became an attorney, for example, work that the individual did while a law student. Such individuals, however, ordinarily must be screened from any personal participation in the matter to avoid communication to others in the firm of confidential information that both the non-attorneys and the firm have a legal duty to protect. See Rules 19-301.0(n) (1.0) and 19-305.3 (5.3).
[5] Rule 19-301.10(b) (1.10) operates to permit a law firm, under certain circumstances, to represent a person with interests directly adverse to those of a client represented by an attorney who formerly was associated with the firm. The Rule applies regardless of when the formerly associated attorney 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 Rule 19-301.7 (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 attorney represented the client and any other attorney currently in the firm has material information protected by Rules 19-301.6 (1.6) and 19-301.9 (c) (1.9).
[6] Where the conditions of section (c) of this Rule are met, imputation is removed, and consent to the new representation is not required. Attorneys should be aware, however, that courts may impose more stringent obligations in ruling upon motions to disqualify an attorney from pending litigation.
[7] Requirements for screening procedures are stated in Rule 19-301.0(n) (1.0). Section (c) of this Rule does not prohibit the screened attorney from receiving a salary or partnership share established by prior independent agreement, but that attorney may not receive compensation directly related to the matter in which the attorney is disqualified.
[8] Rule 19-301.10(d) (1.10) removes imputation with the informed consent of the affected client or former client under the conditions stated in Rule 19-301.7 (1.7). The conditions stated in Rule 19-301.7 (1.7) require the attorney to determine that the representation is not prohibited by Rule 19-301.7(b) (1.7) 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 19-301.7 (1.7), Comment [22]. For a definition of informed consent, see Rule 19-301.0(g) (1.0).
[9] Where an attorney has joined a private firm after having represented the government, imputation is governed by Rule 19-301.11(b) and (c) (1.11), not this Rule. Under Rule 19-301.11(d) (1.11), where an attorney represents the government after having served clients in private practice, nongovernmental employment, or in another government agency, former-client conflicts are not imputed to government attorneys associated with the individually disqualified attorney.
[10] Where an attorney is prohibited from engaging in certain transactions under Rule 19-301.8 (1.8), section (j) of that Rule, and not this Rule, determines whether that prohibition also applies to other attorneys associated in a firm with the personally prohibited attorney.
Model Rules Comparison: Rule 19-301.10 (1.10) is substantially similar to the language of the Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct except for changes to Comment [1] and to provide for screening in Rule 19-301.10(c) (1.10) and Comments [6] and [7], with the appropriate redesignation of sections. These screening provisions, along with Rule 19-301.0(n) (1.0) and Comments [9]-[11] under Rule 19-301.0 (1.0) are substantially the same as former Rule 1.10(b) (adopted January 1, 2000) with additional guidance on how to make screening effective.