If you’re angling for a job at a firm that represents an adverse party in a case you’re handling, you might need to get your client’s consent before going any further.
Otherwise, you might find a State Bar disciplinary notice waiting in your new office if you get hired.
“[A] lawyer may not negotiate for employment with another firm if the firm represents a party adverse to the lawyer’s client unless both clients give informed consent,” says 2016 Formal Ethics Opinion 3, which was approved by the State Bar on January 17.
The ruling goes both ways, requiring the hiring firm to refrain as well from “substantive employment discussions” without the consent of its client.
2016 FEO 3 applies only to lawyers moving from one private job to another. Rule 1.11(d)(2)(B) governs the conduct of a government lawyer seeking private employment.
Read the ethics opinion here.
Material Limitation on Representation
The rationale behind 2016 FEO 3 is straightforward. A lawyer’s ability to provide competent and diligent representation could be “materially limited” – and therefore prohibited under Rule 1.7(b)(2) – if the lawyer is also actively seeking to become opposing counsel’s officemate.
At the very least it doesn’t look good.
In its ruling, the State Bar cited a 1996 ABA opinion (Formal Ethics Op. 96-400): “While the exact point at which a lawyer’s own interest may materially limit his representation of a client may vary, the committee believes that clients, lawyers, and their firms are all best served by a rule that requires consultation and consent at the earliest point that a client’s interests could be prejudiced.”
2016 FEO 3 is also consistent with the Restatement (Third) of the Law Governing Lawyers, which says once employment discussions have become “concrete” and the interests mutual, the lawyer must promptly inform the client. Without client consent, the lawyer must terminate all discussions concerning the employment or withdraw from representation.
The client’s consent must be informed. This means, at minimum, that the job-seeking lawyer should sit down with the client, explain the current posture of the case and discuss what, if any, additional legal work needs to be done.
“If the client declines to consent, the job-seeking lawyer must either cease the employment negotiations until the client’s matter is resolved or withdraw from the representation, but only if the withdrawal can be accomplished without material adverse effect on the interests of the client,” the opinion states.
In some situations it might be possible for another lawyer in the firm to take over the case. But again, the client must freely consent and not feel pressured to stay with the firm.
Substantive Job Talks Required
The ruling prohibits “substantive discussions” about employment with opposing counsel. This means communications about the job-seeker’s skills, experience and ability to bring clients to the firm, as well as the terms of association.
“Sending a resume blind to a potential employer is not a discussion,” says 2016 FEO 3. “Speaking generally with a colleague at a social event about employment opportunities is not substantive.”
Ever found yourself in a position that might fall under this ruling? How did you handle it?