It's no secret that lawyers looking for greener pastures often move to rival firms.
Especially in a relatively small legal market such as Connecticut, that frequently creates situations where an attorney leaves a firm hired by one party in a case and joins another firm that's representing the opposing party.
In those instances, the jilted firm often moves to have the job-changing lawyer's new firm removed from the case on conflict-of-interest grounds. Though lawyers say that judges seldom grant the request, the possibility of creating an array of conflicts can influence a firm's hiring decisions.
But, as of January 1, 2013, that's all about to change.
Connecticut's Practice Book is being amended to create a procedure that will allow the job-changing attorney to promise to stay away from a case without his whole new firm risking disqualification. Following a similar move implemented a few years ago by the American Bar Association, the amendment was recently approved by the Judges of the Superior Court, the Judicial Branch's rule-making body.
Legal industry observers say it's likely to bring an added degree of comfort to large firms when making hiring decisions. That, in turn, could help employment mobility for lawyers in a tight job market. "It's going to give some guidance, especially to some of these bigger firms that have been taking on lateral hires," said Patricia King, chief disciplinary counsel for the Judicial Branch.
Although there has always been lateral movement among partners, the trend escalated in 2007, when 2,423 partners moved in or out of one of the 200 highest-revenue firms as calculated by The American Lawyer, an affiliate of the Connecticut Law Tribune. That was an increase of 12.5 percent from a year earlier. While the economic downturn slowed hiring, it hardly stopped top lawyers from changing jobs. For example, two big firms with Connecticut offices, Littler Mendelson and Bracewell & Giuliani, have added 14 and 13 laterals, respectively, this year on a nationwide basis.
Under the existing rule, a lawyer cannot be involved in a case or other matter involving a client of his or her former firm. But there is no formal mechanism for bowing out. And so if a lateral hire even seems to create such a conflict, opposing counsel often make motions to disqualify the partner's new firm. The standard argument is there is no assurance that sensitive client information gleaned by an attorney at one firm won't be shared with colleagues at a new firm.
Typically, Superior Court judges have handled the motions by ordering the lawyer in question to be "screened" from the case, rather than disqualifying the entire firm. Screening simply means that the disqualified lawyer acknowledges an obligation not to communicate with any colleagues about the case.
The new Connecticut rule will codify that practice and theoretically avoid taking up court time with disqualification motions. As of January 1, the lawyer changing firms will provide written notice to a former client when the potential for conflict arises. In the notice, the client will be informed that the attorney has been screened from the matter and be assured that no information is being shared with or gained from that attorney.