Originally Published in American Bar Association Litigation News, December 13, 2012.
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A contract attorney for a plaintiff's firm who had previously represented the defendant in the same case was not "associated" with her new employer such that her conflict could be imputed to the entire firm and disqualify it from the representation. Brown v. Florida Dep't of Highway Safety and Motor Vehicles.
Brown involved an employment discrimination suit against the Florida Department of Highway Safety and Motor Vehicles. Three years into the case, the defendant sought to disqualify the plaintiff's law firm because of the firm's relationship with an attorney who had previously represented the defendant in the same case while at the Office of the Attorney General (OAG) of the State of Florida. That attorney left the OAG to work at a private firm, then later left that firm to join plaintiff's firm as a contract attorney.
Applicable Ethical Rules
Under Rules 4-1.9(a) and 4-1.11(a) of the Rules Regulating the Florida Bar, an attorney who has previously represented a client in a matter is prohibited from representing another party in the same matter unless the former client gives informed consent. Such consent was not obtained in Brown, but it was also uncontested that the attorney did not personally work on the Brown matter while working for the plaintiff's firm.
The individual attorney's conflict could nevertheless be imputed based on her "association" with the plaintiff's firm. Under Rule 4-1.10(b) governing imputation of conflicts, "[w]hen a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information . . . that is material to the matter."
A similar prohibition is found under Rule 4-1.11(b) governing conflicts of interest for former and current government employees. Thus, if the attorney was "associated" with the plaintiff's firm, the firm could be disqualified from representing the plaintiff.
Contract Attorneys' "Association" With a Law Firm
"[N]ot every lawyer who is paid by a law firm to do work of a legal nature is ‘associated' with the firm," the court explained. "An attorney to whom work is outsourced . . . ordinarily is not an associate."
Reviewing the totality of the circumstances, the court explained that no one factor would be determinative in any case. Here, the attorney worked from home and was paid by the hour to help draft pleadings and briefs as needed. She set her own schedule. There was no expectation that she would have client contact or responsibility for any cases.
The attorney had no opportunity for advancement at the law firm. She did not receive health or retirement benefits from the firm. Her employment had no defined duration, and she was free to do contract work for other firms if she chose to do so.
On the other hand, the attorney also had a firm email address, referred to herself externally as an associate, used the firm's physical address when updating her information with the State Bar, and received a paycheck based on the status of an employee rather than an independent contractor. The court dismissed these facts as "superficial."
Ultimately, the court determined that the attorney had an outsourcing relationship with the plaintiff's firm, and the substance of that relationship was more important than where she received her email. The court acknowledged the defendant's understandable concern that the attorney participated in confidential discussions while at the OAG and then established a relationship with plaintiff's firm in the same case. The court reminded the parties, however, that attorneys have an obligation to maintain client confidences.
"What the court is saying is that because [the attorney] was not physically located [at the law firm], there is not going to be the problem of inadvertent disclosure [of confidential information]," says Roberta K. Flowers, Gulfport, FL, chair of the Professionalism Subcommittee of the ABA Section of Litigation's Ethics & Professionalism Committee. "The only way that confidences would be revealed in this situation is if [the attorney] went out of her way to make that happen."
While the defendant's interests must be protected, the court explained that the plaintiff also had an interest in being represented by the attorney of her choice. Defendant's motion to disqualify the plaintiff's firm was denied.
Outsourcing of Legal Work a Growing Trend
In its analysis, the court acknowledged that relationships like the one at issue here are becoming more common. "[A]n increasing number of attorneys provide legal service in nontraditional settings. A rigid system that prevented the practice would serve little purpose," reasoned the court.
"It is encouraging to see that the court is going to be receptive to the more flexible ways that people are going to be able to work," says Flowers. But some argue that the decision should not be broadly interpreted. "I think you see a court struggling to reach an equitable result in a difficult situation; I don't think you see a court desiring to set a roadmap for new public policy," says Gregory R. Hanthorn, Atlanta, cochair of the Section of Litigation's Ethics & Professionalism Committee.
The result in Brown may be surprising to some on initial reading. However, its reasoning is consistent with other ethics opinions concerning the imputation of the conflicts of a contract attorney to the firm for which he or she works. For example, a 2010 opinion by the D.C. Bar found that a contract attorney working for a firm representing a party adverse to the attorney's former client is not "associated" with his new firm for the purpose of imputed disqualification where the attorney "will work in a separate location away from the firm's office space . . . [and h]is electronic access to the firm and the confidential information of its clients is confined to the specific [unrelated] project on which he is working." Similarly, a 1997 opinion of the State Bar of Arizona determined that the conflict of a contract attorney may not be imputed to his or her firm where the contract attorney's access is restricted to only those client files and information for which the attorney was retained.
Looking Forward
"Brown should not be read as a blanket rule that the work of contract attorneys can never be imputed to the law firm employing those contract attorneys," says Hanthorn. "It is a very fact-specific opinion that relied upon the credibility of the two attorneys involved."
Though not discussed in Brown, another issue attorneys should consider is their public image. "Conflicts rules are not just about confidential information; a big part of the conflicts rules are loyalty issues and the perception of loyalty by clients," says Flowers. "As lawyers we have to continue to be very aware from a professionalism perspective that we face some unflattering stereotypes and we have to be very careful that our actions don't perpetuate those stereotypes. With regard to conflicts, it is very important that the public doesn't think that we say one thing today and another thing tomorrow."
The best take-away from this decision may be to take the necessary steps to not find oneself in this situation in the first place, says Hanthorn.
