Proposed 2016 Formal Ethics Opinion 3: Negotiating Private Employment with Opposing Counsel
View the Proposed Ethics Opinion in Full Here
A proposed ethics opinion entitled “Negotiating Private Employment with Opposing Counsel” was proposed on April 21, 2016. The proposed opinion discussed the issue of whether or not a lawyer may negotiate for employment with a law firm that represents a party on the opposite side of the matter in which the lawyer’s firm is also representing a party. In short, the answer is yes, with client consent.
The opinion referenced Rule 1.7(b)(2) which states that a lawyer may not represent a client if that representation may be materially limited by the lawyer’s personal interest, unless the lawyer believes he can provide diligent representation and the client gives consent in writing. A comment to the rule states that discussions concerning possible employment with an opponent to the lawyer’s client, could materially limit the lawyer’s representation of the client.
No substantive negotiations concerning the lawyer’s employment should take place without the client’s consent.
Although it is unclear at which point a lawyer’s interest may materially limit his representation of a client, ABA Formal Ethics Op. 96-400 advises that a lawyer should disclose and get consent from his client at the earliest point that the client’s interests could be prejudiced. In other words, no substantive negotiations concerning the lawyer’s employment should take place without the client’s consent. If the client refuses to give consent, the lawyer must either cease employment discussions with opposing counsel or withdraw from the case. Another lawyer from the firm may represent the client, however, because personal conflicts of interest are not imputed to other lawyers in the same firm under Rule 1.10(a).
The hiring law firm must also inform its client of negotiations with the job-seeking lawyer and will be under the same obligation to either cease employment discussions or withdraw from the case if the client refuses to give consent.
The opinion also states that a lawyer who does not hold confidential client information is not restricted from engaging in substantive employment negotiations with an opposing law firm. This would not be a violation of the Professional Rules of Conduct.