Marcy Tench Stovall, a Pullman & Comley attorney who served on the Connecticut Bar Association's Committee on Professional Ethics, which studied and recommended the rule change, said the amendment is significant for two reasons. First, she said, "the rule change addresses, in a practical way, the reality of increased lateral movement of attorneys between firms."
Additionally, she said, it reflects what judges have already been doing. Stovall said there have been no reported decisions in which a motion to disqualify a firm for conflict of interest was granted as long as the firm made assurances that a new lawyer would have no involvement in a particular case. "The rule change codifies those rulings and gives clear guidance to attorneys and law firms," Stovall said.
Keith Braddoc Gallant, the outgoing CBA president and a Day Pitney partner, endorsed the rule change. He said that it protects the "confidences and information of former clients" while also "providing a lawyer with the freedom to move from one firm to another without encumbering his new firm with imputed conflicts of interest."
King, the chief disciplinary counsel, said she does not expect to receive many complaints that a lateral partner is taking part in a case involving his or her old law firm, or that the attorney has not provided written notice promising to stay away from a case. "Obviously, if we got a complaint, we'd look at the rule and we'd look at the complaint and we'd go from there," she said.
When the issue of changing the rule was first broached by the ABA a few years ago, competing recommendations were debated, as bar leaders tried to balance the need to protect client information with a desire to remove restrictions to attorney mobility. In the end, a compromise was reached, but not everyone was happy with the results.
Among them is Monroe Freedman, an ethics scholar and professor at Hofstra University School of Law, who is credited with writing the first attorney ethics treatise in 1975. He opposes any relaxation of the rules governing conflict-of-interest situations generated by lateral moves. He believes despite assurances of law firms that job-changing lawyers will be screened away from a case that the possibility of improper sharing of client information still exists.
The new rule passed, Freedman said, not because it's a great idea, but because it benefits big law firms who hire the bulk of lateral partners. "There are so many lawyers with big firms who are highly influential and well-represented in the ABA House of Delegates," Freedman said.
He's not the only one who sees potential problems.