Tex. R. Disc. Prof'l. Cond. 1.10

As amended through August 27, 2024

Rule 1.10 - [Effective 10/1/2024] Imputation of Conflicts of Interest: General

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.06 or 1.09, unless:

(1) the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; or

(2) the prohibition is based upon Rule 1.09(a) or (b), and arises out of the disqualified lawyer's association with a prior firm, and:

(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(ii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule, which shall include a description of the screening procedures employed; a statement of the firm's and of the screened lawyer's compliance with these Rules; and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures.

(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:

(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and

(2) any lawyer remaining in the firm has information protected by Rules 1.05 and 1.09(c) that is material to the matter.

(c) A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in Rule 1.06.

(d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.

Tex. Disc. R. Prof. Cond. 1.10

Amended August 27, 2024, effective 10/1/2024.

Comment:

Principles of Imputed Disqualification

1. Paragraph (a)'s rule of imputed disqualification gives effect to the principle of loyalty to the client as it applies to lawyers who practice in a law firm. Paragraph (a) is premised on the idea that a firm of lawyers is essentially one lawyer for purposes of client loyalty and that a lawyer is vicariously bound by the obligation of loyalty owed by the other lawyers with whom the lawyer is associated. Paragraph (a)(1) 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 1.09(b), 1.10(a)(2), and 1.10(b).

2. Paragraph (a) does not prohibit representation when client loyalty or protection of confidential information are not at issue. For example, if one lawyer in a firm could not effectively represent a given client because of strong political beliefs, but that lawyer will not work on the case and that lawyer's personal beliefs will not materially limit the representation by others in the firm, the firm should not be disqualified. On the other hand, if one lawyer in a law firm owns a party adverse to the law firm's client in a case, and others in the firm would be materially limited in their representation because of loyalty to that lawyer, the lawyer's personal disqualification would be imputed to all others in the firm.

3. Paragraph (a) also does not prohibit representation by others in the law firm if the person prohibited from involvement in a matter is a nonlawyer, such as a paralegal or legal secretary. Nor does paragraph (a) prohibit representation by others in the law firm if a lawyer is prohibited from involvement in a matter because of events that took place before that person became a lawyer, for example, work performed as a law student.

4. Paragraph (b) applies regardless of when the formerly associated lawyer represented the client.

5. Paragraph (c) removes imputation with the informed consent of the affected client or former client under the conditions stated in Rule 1.06.

6. Paragraph (a)(2) similarly removes imputation, but, unlike paragraph (c), it does so without requiring that there be informed consent by the former client. Instead, it requires that the procedures laid out in paragraphs (a)(2)(i)-(ii) be followed. Lawyers should be aware, however, that, even where screening mechanisms have been adopted, tribunals may consider additional factors in ruling upon motions to disqualify a lawyer from pending litigation.

7. Paragraph (a)(2)(i) does not prohibit the screened lawyer from receiving a salary or partnership share established by prior independent agreement.

8. The notice required by paragraph (a)(2)(ii) is intended to enable the former client to evaluate and comment upon the effectiveness of the screening procedures.

9. If a lawyer joins a private firm after representing the government, imputation is governed by Rule 1.11, not this Rule.

10. If a lawyer is prohibited from engaging in certain transactions under Rule 1.08, then Rule 1.08(i), not this Rule, determines whether that prohibition also applies to other lawyers associated with the personally prohibited lawyer's firm.