There are Rules governing the
transfer of lawyers between firms – see Rules 3.4-7 to Rule 3.4-10 in the Code of Conduct. These Rules are primarily
concerned with the protection of a former client’s confidential information. You
are of course at liberty to move to new firms, but client confidentiality must
be preserved.
If you are transferring to a new firm or operate a firm and have a new
lawyer joining you, you must be aware of the conflict Rules regarding the
transfer of lawyers between firms. Rule 3.4-10 contains provisions
regarding communication by the transferring lawyer and the former firm to
clients with respect to whether the client and particular files stay with the
firm or transfer with the lawyer.
The purpose of the Rules regarding
transferring lawyers is to deal with actual knowledge. Imputed knowledge may
not give rise to disqualification if the law firm can demonstrate compliance
with these Rules and the implementation of effective ethical screens.
The duty to maintain confidentiality and the duty to avoid conflicts
apply to all lawyers, regardless of practice setting. The definition of “law firm”
in the opening section of the Code is broad and includes space-sharing lawyers
as well as partnerships and sole proprietorships. It also includes one or more
lawyers practicing:
- in a clinic operated by Legal Aid Alberta; or
- in a government, crown corporation, public body,
corporation or other organization.
Note as well that the Code’s definition of “lawyer” is broad and includes
a student-at-law, as well as inactive and suspended members of the Law Society.
In fact, even hiring support staff from another law firm can create a potential
conflict, and all staff transitions between firms must be properly managed.
References in the Code to “lawyer” extend to the lawyer’s firm and each member
int the firm.
When a lawyer joins a new law
firm, the “transferring lawyer” and the new law firm must address the duty of
confidentiality the transferring lawyer owes to clients of the former firm.
Rules 3.4-8, -9 and -10 of the Code outline the procedures to be followed by transferring
lawyers and their new firms.
Also consider Rule 3.3-7 when considering the hiring of a new lawyer.
When considering lateral transfers or firm mergers, lawyers may share
confidential client information to the extent necessary to detect and resolve
conflicts of interest. A transferring lawyer may provide client information to
the new prospective employer, including the names of the clients, a brief
summary of the general issues involved and the status of the representation.
The disclosure will be made to as few lawyers at the new law firm as possible,
ideally to a designated conflicts lawyer. These disclosures should be made on
the understanding that the new law firm will limit access to the disclosed
information and not use it for any purpose other than detecting and resolving
conflicts. All information should be returned, destroyed or securely stored
once appropriate confidentiality screens are established to facilitate the
lawyer’s transfer. Special considerations apply when disclosure may compromise
solicitor-client privilege or may otherwise prejudice a client, due to the
disclosure of sensitive information. Examples include a corporate client
seeking advice in a corporate takeover that has not been publicly announced or
circumstances in which an individual has consulted a lawyer about the
possibility of a divorce before such intentions are known to the other spouse.
The new law firm must ultimately establish whether it represents a
client in a matter that is the same as or related to
a matter in which the transferring lawyer’s former firm represents or
represented a client, and whether the interests of the clients in
that matter conflict.
If the transferring lawyer has confidential information about the former
firm’s client that could prejudice that client if disclosed to the new firm,
the new firm may have to cease representing its client.
Rule 3.4-9 of the Code applies to this scenario. If the new firm wants
to continue to represent its client, the new firm must either:
- Obtain consent from the former client; or
- Establish that it is in the interests of
justice that the New Firm continue to act for the New Firm Client in the
matter, having regard to all relevant circumstances, including:
- the adequacy and timing of the measures taken to
ensure that confidential information of the Former Client is not
disclosed to any member of the New Law Firm;
- the extent of prejudice to
any party;
- the good faith of the parties;
and
- the availability of
suitable alternative counsel.
If the transferring lawyer does
not have confidential information that could prejudice the former firm’s
client, Rule 3.4-10 states that the transferring lawyer cannot, without the
consent of the former firm’s client:
- participate in the new firm’s representation of its
client or disclose any information respecting the former firm’s client; or
- discuss the new firm’s
representation of its client or the former firm’s representation of the
former firm’s client, other than to detect and resolve conflicts in
accordance with Rule 3.3-7 of the Code.