Law Practice Essentials

When a lawyer is transferring to another firm, the departing lawyer and the prospective new firm must perform a conflict check to determine if the departing lawyer has represented a party with interests adverse to those of the new firm’s clients. The transferring lawyer must accordingly share some information about current and former clients. It is appropriate to limit this information to what is necessary to detect and resolve a conflict arising from the lawyer’s change of employment – such disclosure would include client names, names of opposing parties, a brief summary or description of the matter and whether the file is ongoing or has been concluded. It should not include information about the fees generated from a particular client’s files, for example, as that information goes beyond what is necessary to conduct a conflicts analysis. 

If, however, the disclosure would compromise privilege or otherwise prejudice the client, the disclosure may be prohibited. There may be potential prejudice to a client when, for example, the client has consulted the firm about the possibility of a divorce before the client has made his or her intention known to the other spouse. A similar concern may arise if the client has consulted a lawyer about a criminal charge before public charges have been laid. In the context of corporate practice, the fact that a client may have sought advice on a takeover, that has not yet been publicly announced, would be information that should not be disclosed when screening for conflicts. 

If information may not be disclosed due to concerns over privilege or potential prejudice to a client, the departing lawyer and the new firm have three options: 

• abandon the move; 
• defer the move until the conflicts check can be completed without prejudice to the client; or 
• complete the move on the understanding that if a conflict emerges, the new firm will deal with the situation as required when the conflict becomes known.