The modern practice of law involves a substantial amount of job mobility. As attorneys move firms, they often bring conflicts of interest along with them. Generally, an attorney’s conflict will prevent the attorney’s firm from engaging in representation. However, properly enacted ethical screens can rebut the presumption that a conflicted attorney has shared confidential information with his or her firm, and therefore allows the firm to continue representation.
As more attorneys make lateral moves, it has become increasingly common for an attorney to move from a firm representing one side of an active dispute to a firm representing the other. Thus, courts have been asked to determine if firms can properly screen attorneys coming from the opposition’s firm during an active proceeding. When this question arises due to an attorney’s conflict within a bankruptcy proceeding, bankruptcy courts must look to title 11 of the United States Code (the “Bankruptcy Code”) in conjunction with local rules.
This article analyzes the imputation of attorney conflicts in two steps. Part I discusses sections 327(a) and 101(41) and whether the Bankruptcy Code requires an attorney’s conflict to impute to the entire firm. Part II explains how motions to disqualify require looking to a court’s local rules and the prevalence the of the American Bar Association’s Model Rules of Professional Conduct (“Model Rules”) in federal courts.