Ethics Opinion 312
Information That May Be Appropriately Provided to Check Conflicts When a Lawyer Seeks to Join a New Firm
当一名靠谱的滚球平台考虑跳槽到一家新公司时, 有必要确定靠谱的滚球平台先前在客户事务上所做的工作是否会给新公司带来利益冲突. To check whether such conflicts exist, only information that does not constitute “confidences” or “secrets” may be revealed without client consent. However in most cases sufficient information can be disclosed to permit a conflicts check.
Applicable Rules
- Rule 1.6 (Confidentiality of Information)
- Rule 1.10 (Imputed Disqualification)
Background
In Opinion No. 273, we discussed a number of issues raised by the movement of lawyers from one firm to another. 其中一个问题是需要检查靠谱的滚球平台现有事务所的现任和前任客户与新事务所的客户之间可能存在的利益冲突. This opinion expands on Opinion No. 273 by seeking to address possible confusion or uncertainty among lawyers who are proposing to move to a new firm about the extent to which they can reveal information to their prospective new firms for the purpose of undertaking such conflict checks.1
Discussion
To understand what information a lawyer may appropriately reveal in checking conflicts with a new firm, 简要回顾一下适用于这些情况的标准应该是有帮助的. D.C. Rule 1.10(b) provides specific guidance on what creates a conflict of interest with respect to client relationships on which the moving lawyer is no longer participating when the lawyer joins the new firm.2 该规则规定，当靠谱的滚球平台加入一家律所, that firm may not represent a client in any matter that is the same as or substantially related to a matter on which the lawyer formerly worked for a client adverse to the present firm’s client, 但前提是移动靠谱的滚球平台“事实上已经获得了受规则1保护的信息”.6 that is material to the matter.”
In several ways, this is a narrower test than the former-client substantial relationship test as imposed by the combination of Rule 1.9 and Rule 1.10(a)如果靠谱的滚球平台没有更换事务所. First, under Rule 1.9, 如果为另一个客户提供的后一件事是“实质性相关的”，则推定在先前的代理中收到了机密信息.” Where such a presumption is made, a lawyer will generally not be heard to assert that the lawyer did not actually receive such information.3 By contrast, Rule 1.第10(b)条涉及靠谱的滚球平台是否确实在先前的陈述中收到了对当前事项至关重要的机密信息.
Second, under Rule 1.10(b) a moving lawyer’s former clients for conflict-checking purposes do not include every client in the former firm but only those clients on whose matters the lawyer actually worked. Comment [19] states in part: “Thus, not all of the clients of the [lawyer’s] former firm . . . 必然被视为[搬家靠谱的滚球平台]的前客户. 只有那些与[搬家靠谱的滚球平台]实际上有靠谱的滚球平台-客户关系的客户才是[规则1]规定的前客户.10(b)].”4 因此，当靠谱的滚球平台在a事务所时，规则1的规定.10(a)根据利益冲突规则(特别是第1条)，将事务所内任何靠谱的滚球平台的资格取消归咎于该靠谱的滚球平台.7, 1.8(b), 1.9, or 2.2)靠谱的滚球平台是否参与引起冲突的代理. 但当靠谱的滚球平台转到B公司时，靠谱的滚球平台从A公司带来的唯一冲突是由靠谱的滚球平台实际参与的客户陈述引起的. Conflicts that applied to the lawyer while in firm A only because of the imputation required by Rule 1.10(a)不适用于靠谱的滚球平台跳槽到另一家律所.
Third, as noted in Opinion 273, in order to trigger disqualification of the new firm under Rule 1.10(b), 搬家靠谱的滚球平台仅仅在原事务所参与代理客户是不够的. Rather, disqualification is appropriate only where that lawyer has “acquired information protected by Rule 1.6 that is material to the matter.” Therefore, as Opinion No. 273 says, 这一条款“为靠谱的滚球平台, 例如，在一件事情中只涉及到外围事务(如准备一份关于法律问题的研究备忘录)的助理。, 不会使他的新公司根据规则1被取消资格.10(b) because that lawyer did not learn any client confidences in the course of the representation.”5
This narrower scope of Rule 1.10(b) reflects the policy favoring attorney mobility; the concern was that the broader test of Rules 1.9 and 1.10(a), 如果适用于靠谱的滚球平台换事务所的情况, 是否会导致“靠谱的滚球平台从一个执业环境转到另一个执业环境的机会大幅减少，以及客户更换靠谱的滚球平台的机会大幅减少?.” Comment [10] to Rule 1.10.
Typically, when a lawyer contemplates joining a new firm, 靠谱的滚球平台向该公司提供客户信息, adversaries, and an indication of the subject matter on which the lawyer has worked at the lawyer’s existing firm so that the potential new firm may check to see whether the lawyer’s joining it would create a conflict of interest with any of that firm’s clients.6 What can a lawyer contemplating such a move firm reveal to that firm in providing that information? Rule 1.6 governs the answer to this question. Subsections (a) and (f) require lawyers not to reveal “confidences” and “secrets” of a client or former client. (Of course under Rule 1.6(d)(1)客户可同意披露保密或秘密, 但我们在此假定没有得到这样的同意.) Rule 1.6(b) defines “confidence” as “information protected by the attorney-client privilege under applicable law”—a reminder that the scope of the privilege is a matter of substantive law and not an appropriate subject for an opinion of this Committee. We will assume that the privilege covers communications made in confidence by the client to the lawyer for the purpose of obtaining legal advice and communications from the lawyer to the client that might reflect the substance of those client-lawyer confidential communications. See Evans v. Atwood, 177 F.R.D. 1 (D.D.C. 1997).
Rule 1.6(b) then defines “secret” as “other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing, or would likely be detrimental, to the client.“秘密”可以是从客户以外的其他来源获得的信息，并且可以在不失去其秘密地位的情况下由其他人共享. Comment [6] to Rule 1.6; see our Opinions No. 83 and 246. As Comment [6] to Rule 1.6 states, the requirement to protect secrets “reflects not only the principles underlying the attorney-client privilege, 但靠谱的滚球平台对当事人忠诚的义务.”
Thus the critical point in identifying secrets is not whether the information came from the client or who else knows it, but whether it was “gained from the professional relationship” and (1) the client has asked that it be held inviolate or (2) revelation of it would be embarrassing or likely detrimental to the client.7 An illustration of the limitation on the scope of “secrets” is contained in Comment [8] to the D.C. version of Rule 1.6, 哪一个观察到至少相对于前一种表示, “秘密”不包括已经“众所周知”的信息.“我们认为，在靠谱的滚球平台搬家的情况下, or is contemplating a move, to another firm and is determining what information may be revealed for checking conflicts with that firm, the bar on revealing “secrets,，除了不适用于无害或无懈可击的信息之外, 也不会阻止靠谱的滚球平台讨论那些本来是秘密但已广为人知的信息吗.8
We stress that we are here referring to information that is truly generally known so that the lawyer in question is certain that the information is not new to the person whom the lawyer is discussing it with. For example, if the press has widely reported that a particular corporation was one of several that had been sued by a federal agency, 那么，如果一位搬家的靠谱的滚球平台提到他或她曾在现有的律所参与过那个诉讼，就很难说他或她泄露了一个“秘密”. The lawyer must make the judgment of whether particular information is a secret or not (see our Opinion No. 128). 我们警告说，因为这样的决定是在几乎完全私人的背景下做出的，靠谱的滚球平台在另一家公司求职, 在存在疑问的情况下，靠谱的滚球平台必须宁可保护信息.
Without the former client’s consent, therefore, a lawyer may, in checking conflicts at a new firm, reveal information about representations that is not privileged and is not a secret because it has not been requested by that client to be held inviolate and the revelation of which would not be harmful or embarrassing to that client or has become generally known. In the great majority of cases, we believe, this leaves lawyers free to reveal sufficient information to carry out a reliable conflict check. Information about many representations would not harm or embarrass the client where the basic facts of the representation are unexceptionable or already known to opponents or others who are not the client, including, for example, 监管机构或其他政府机构.
Moreover, it is typically necessary to reveal only the most general information about a representation in order to determine, positively or negatively, whether a representation may cause a conflict. This is clear from the holding in T.C. Theatre Corp. v. Warner Brothers Pictures mentioned above. See also, Brown, supra, 486 A. 2d at 49-50. In T.C. Theatre, 靠谱的滚球平台以前的委托人是靠谱的滚球平台现在委托人的诉讼对手, 前委托人要求取消该靠谱的滚球平台和靠谱的滚球平台事务所的资格, 声称在之前的代理中靠谱的滚球平台从当时的客户那里获得了机密信息这些信息现在将对反对前客户有用. 靠谱的滚球平台否认他在前一次辩护中得到过这种情况. Judge Weinfeld ruled that to inquire into the truth of the assertions about what information had been confided in the earlier representation would require the revelation of the very confidential information sought to be protected. To avoid that, he held, the appropriate inquiry would be whether the current representation was “substantially related” to the former. If it was, 那么就可以推定，在前一项陈述中所给予的信任将在后一项陈述中对前委托人不利. To effectuate this test, the subject matter of former representation is described in general terms and compared to the current representation. 如上所述，本标准编入规则1.9 of the D.C. Rules as the primary determinant of whether a lawyer may oppose the interests of a former client on particular issues. 正如我们所描述的，为了避免阻碍靠谱的滚球平台流动规则1.10(b) imports a narrower version of the substantially related test (under which the subject matter is compared but there must be actual possession by the lawyer of protected information rather than simply presuming possession); but the basic process of comparing representations to determine whether they involve similar subject matter is the same under Rule 1.10(b) as it is under Rule 1.9. 规则1几乎不可能是有意的.10(b) impose a standard for checking conflicts that cannot be applied without revealing secrets protected by Rule 1.6.
There are, of course, many instances in which the facts surrounding a representation (such as that client X is contemplating a takeover of another business or has consulted a divorce lawyer or a criminal defense lawyer) may be extremely sensitive and so fraught with the possibility of injury or embarrassment to that client that absent a waiver that information is not subject to disclosure even for the purpose of checking conflicts.9
See D.C. Rule 1.7, comment [19]. 规则1中的保密规则没有具体的豁免.6或其他允许靠谱的滚球平台为检查或寻求放弃冲突的目的而披露机密信息的地方. This does not, mean, however, that there are no techniques that may in many cases allow conflicts to be adequately checked while at the same time assuring confidentiality to the full measure required by the Rules. A helpful discussion of possible approaches is provided in New York State Bar Opinion No. 720 (1999). Some rough guidelines or suggestions follow. However, 这里建议的这些快捷技术的适当性和有用性实际上只能根据具体情况来判断.
- As noted above, as a general rule it is merely necessary to compare the client name and the general subject matter of the representation. 这些信息通常既不是特权，也不是秘密.
- In some cases, 在不指明客户名称的情况下指明某一特定问题或主题，可能足以确定不存在任何冲突(see Opinion No. 265 on positional conflicts).
- 如果主题是敏感的，而不是客户的名字, 如果搬家靠谱的滚球平台只提到客户的名字，并询问公司这是否会造成问题，通常可以避免敏感领域. 如果没有，则可能没有必要确定该陈述的主题是否存在任何问题.10
- If the identity of the client creates a problem (for example because the moving lawyer’s practice specialty—for example, 刑事法律将结合客户端名称透露太多), 搬家靠谱的滚球平台可能会说, instead of the client, 与该客户为敌对关系的个人或实体. 如果公司不代理他们，可能就没有问题了.
- At least as a first stage in an inquiry, 向公司提供一份名单，但不透露哪些是客户，哪些是对方，这样可能避免泄露机密和秘密, perhaps also presenting the names in alphabetical or other order so as not to suggest associations. Depending on the substance of the firm’s reaction or lack thereof to the names on the list, it may well be possible to discern that there is no problem without revealing additional information.
Adopted: April 2002
Published: May 2002
1. 加入靠谱的滚球平台事务所的靠谱的滚球平台是否担心在成为靠谱的滚球平台之前所做的工作可能引起的冲突, as a law clerk, summer associate, paralegal assistant, or other nonlawyer assistant, Rule 1.10(b) does not require disqualification of the firm which the lawyer is joining in any event, but other considerations apply. See Opinion No. 227.
2. Rule 1.10(b), 延伸到靠谱的滚球平台“以前代表过客户”的情况,” covers both instances where the client matter has ended at the lawyer’s former firm (or other employment) and where the matter may be continuing but the moving lawyer is no longer working on that matter.
3. See T.C. Theatre Corp. v. Warner Brothers Pictures, 113 F. Supp. 265 (S.D.N.Y. 1953). T.C. Theatre is cited in comment [2] to Rule 1.9. Cf. Brown v. 哥伦比亚特区分区调整委员会，486 A.2d 37 (DC 1984)(en banc) (applying the “substantially related” test under the former Code of Professional Responsibility in the context of determining disqualification of a former government employee).
4. “个人有靠谱的滚球平台-客户关系”这个短语涵盖了靠谱的滚球平台实际处理客户事务的任何情况, 不管靠谱的滚球平台是否与客户有“私人”关系.
5. Actually, this portion of Opinion No. 273 may be subject to misinterpretation if it is read to suggest that the only information protected under Rule 1.6是客户的“机密”——受靠谱的滚球平台-客户特权保护的信息. Rule 1.6还要求靠谱的滚球平台对“秘密”保密, 机密被定义为“在专业关系中获得的、客户要求不受侵犯或披露会令人尴尬的其他信息”, or would likely be detrimental, to the client.” It is, of course, extremely important for lawyers to be scrupulous in determining whether they may have such information.
6. 概括这个过程如何发生或应该发生是不可能的. Typically, by comparison to the moving lawyer, the firm has more clients and a system, often computerized, for checking conflicts (cf. the final sentence of Comment [11], Rule 1.因此，搬家靠谱的滚球平台向事务所提供这些信息是有道理的, to be checked against the firm’s system. 但通常情况下(例如……, 当搬家靠谱的滚球平台或靠谱的滚球平台事务所有专门业务时，搬家靠谱的滚球平台应特别询问该靠谱的滚球平台事务所是否代表特定客户, is adverse to particular entities, 或涉及特定的问题或争议.
7. Subsections (a) and (b) of Rule 1.6 are substantially identical to DR 4-101(B) and (A) of the former Code of Professional Responsibility. The D.C. Bar建议在规则1中保留这种措辞.6，而不是当时新颁布的美国靠谱的滚球平台协会职业行为示范规则，因为美国靠谱的滚球平台协会示范规则1.6 language was “broader than warranted.” Report of the D.C. Bar Model Rules of Professional Conduct Committee (the so-called Jordan Committee) and the Board of Governors, November 19, 1986, at 52. 约旦委员会指出，美国靠谱的滚球平台协会版本的规则禁止靠谱的滚球平台透露“与代理有关的任何信息”.“这是一个例子，说明了这个公式的广泛性, 委员会注意到，如果在代理结束后通过报纸向靠谱的滚球平台提供资料，则该资料将受到法律的保护. Id. 而约旦委员会没有提到这一点, the ABA version would also bar the lawyer from mentioning any such information even if it could not possibly cause injury, or even were favorable, to the client. We think it plain that this is another example of overbreadth of the ABA version when compared to the DC Rule, 只有客户要求不受侵犯的信息或泄露会使客户尴尬或有害的信息才被视为“机密”.
8. We doubt that the word “reveal” (Rule 1.6(a)(1)) even properly applies to the act of stating a fact to a hearer who already knows that fact. Further, 向某人披露事实的行为是否会使某人在规则1中“秘密”定义的意义范围内感到尴尬或有害，这是值得怀疑的.(b)如果信息披露给的人已经知道该信息.
9. 在寻求放弃冲突方面，这是一个常见的困难. 即使靠谱的滚球平台认为可以给予豁免, it cannot be sought if in order to inform the would-be waiving client sufficiently it is necessary to reveal confidential information about the other client the revelation of which would not be consented to.
10. 在大多数情况下，这可能是一种成功的技术. It cannot be presented as effective as a rule, however, 因为这个问题可能影响到的人实际上并没有被认为是不利的. Again, see Opinion No. 265 (positional conflicts).
