New Texas Disciplinary Rule Offers Relief for Lateral-Hire Conflicts
By Laura Popps
Lateral-hire conflicts – those created when lawyers move between firms – have been creating headaches for lawyers and law firms for decades, but the problem has grown increasingly difficult to manage with the increase in lawyer mobility in recent years.
With the adoption of new disciplinary rules on October 1, 2024, Texas lawyers will now be able to better manage these issues by implementing screening protections previously unavailable.
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New Rule 1.10[1] fundamentally changes how imputed conflicts are handled in Texas for lawyers switching firms. Now, when a lawyer moves to a new firm, any conflicts the lawyer brings with them as a result of formerly representing a client who is materially adverse to a current client of the new firm, will not be imputed to members of the new firm if:
(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 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.[2]
Notably, this is the case even if the former representation involved the same or a substantially related matter. Some jurisdictions do not permit screening if the newly hired lawyer substantially participated in the representation of the former client at issue.[3]
In addition, when screening pursuant to Rule 1.10(a)(2), it is not required to obtain the informed consent of the former client as long as the requisite notice is given so that the former client can evaluate the effectiveness of the screening procedures.[4]
Prior to this rule change, if a lawyer brought a conflict to his or her new firm, the entire firm was conflicted out of the representation, and screening was not available to cure the conflict. New Rule 1.10 is a significant and much-needed improvement to the disciplinary rules that will allow Texas lawyers to keep pace with a rapidly changing and increasingly mobile legal market.
Laura Popps defends Texas attorneys before the State Bar, advises on legal ethics, and handles criminal appeals. A former prosecutor, Laura has been Board Certified in Criminal Law by the Texas Board of Legal Specialization since 1999. She then served for ten years as Regional Counsel at the State Bar of Texas’ Office of Chief Disciplinary Counsel before founding her own firm. Laura can be reached at laura@poppslaw.com or (512) 865-5185.