July 17, 2019 – Conflicts can arise when a lawyer seeks a new position. But precisely when do those conflicts arise? When should lawyers notify clients that they are seeking a new position?

Question

I work as a criminal defense attorney at a small firm, taking mostly public defender appointments.

Recently, a position for an assistant district attorney opened in a neighboring county and I applied. After two interviews, I was offered the position and accepted. I notified my firm and told them I would begin telling clients, withdrawing from my cases, and requesting that new counsel be appointed.

The senior lawyer at my firm told me that I should have informed my criminal defense clients much sooner, when I agreed to an interview.

I found that surprising as I thought it wouldn’t make any difference, in my opinion, if I didn’t get the job, and I did not want word getting to my employer that I was looking for a new position

Did I have an obligation to notify my criminal defense clients that I was just interviewing for a job as an assistant district attorney?

Answer

Most lawyers understand that it is well established that job searches can give rise to conflicts for lawyers, but the question here is when the conflict arises.

This was addressed in the recently released Wisconsin Formal Ethics Opinion EF-19-01. The opinion begins by noting that the Rules of Professional Conduct for Attorneys¹ and the Restatement of the Law Governing Lawyers² agree that when a lawyer has an active and material role in the representation of a client, engaging in job negotiations with an opposing firm or party will create a conflict of interest for both the job seeking lawyer and the potential employing law firm.

In addressing the question of when the conflict arises, the opinion agrees with influential ethics opinions³ from other jurisdictions, which hold that the conflict arises before an actual offer of employment is made and accepted:

Both opinions take the position that a conflict will arise whenever a lawyer agrees to substantive discussions, such as an interview, with an opposing law firm when the lawyer has a material and active role in the matter. Further, a lawyer who has a material and active role in a matter, will have a conflict when the lawyer sends a targeted and specific expression of interest to an opposing firm or party. Both opinions also note the difficulty in establishing a bright line test and that some situations will depend on specific facts. The Committee agrees with this analysis.

In this situation, the criteria for the existence of a conflict under SCR 20:1.7(a)(2) exists.

• First, the lawyer had an active and material role in the representation of the clients, as the lawyer was the lawyer appointed to represent the criminal defense clients.

• Second, the lawyer sent a targeted expression of interest and agreed to substantive discussions (interviews) about possible employment with an opposing law firm, the district attorney’s office.⁴

If the lawyer wished to continue with the interview process with the opposing law firm, the lawyer would have to disclose that fact to his criminal defense clients, and either obtain their written and signed informed consent to the conflict or withdraw from the representation.⁵

The opinion notes that that this duty is part of the lawyer’s obligation to provide sufficient information to make informed decisions about the representation:

As discussed below, most job-seeking conflicts will be consentable, and so it is useful to consider what would be the reasonable expectations of the client in knowing when their lawyer is seeking employment from the client’s opposing firm or adversary. In the view of the Committee, most clients would consider this to be important information and material as to their choice of counsel.

The opinion goes on to offer some guidelines for lawyers seeking jobs from opposing firms or parties:

With that in mind, we offer the following guidelines as to when the conflict arises:

1) Generalized, non-specific job searches normally do not result in a conflict. For example, a lawyer who sends out the same resume to multiple potential employers, which may include an opposing firm, will not have a conflict.

2) If a potential employer that is an opposing firm responds to a generalized job search with an offer of an interview (or other concrete offer to discuss possible employment), the lawyer will have a conflict if the lawyer agrees to the interview. If the lawyer declines the interview, or if the potential employer indicates that they are not interested, the lawyer does not have a conflict.

3) If a lawyer has an active and material role in a matter, and the lawyer sends a targeted, specific expression of interest to an opposing firm, the lawyer normally will have a conflict of interest when the expression of interest is communicated to the opposing firm. For example, a partner who has primary responsibility for a matter and is the main client contact, ordinarily must disclose before specifically seeking employment with an opposing firm. Likewise, a criminal defense lawyer who sends a targeted and specific expression of interest to an opposing prosecutor’s office has a conflict requiring disclosure and consent from the lawyer’s criminal defense clients.

4) A lawyer who receives a contact from a potential employer, or a head-hunter acting on behalf of a potential employer, offering to discuss potential employment has a conflict when the lawyer agrees to participate in such a discussion. If, however, the lawyer declines to participate, no conflict arises.

While these guidelines do not cover every possible situation, and are not meant to be exhaustive, it is hoped that they serve as useful examples of the principles set forth in the conflict rules.

The opinion also lists ways to deal with the conflict:

Once a lawyer has determined that a conflict has arisen, it is the responsibility of the lawyer to address the conflict. Normally, this can be accomplished in one of three ways:

1) Reassignment or withdrawal: If the job-seeking lawyer works in a law firm with other lawyers, and it will not be harmful to the interests of the client, the lawyer may seek to be relieved of responsibility for the matter.⁶ The Committee understands that for many lawyers, disclosing the fact that the lawyer is seeking employment elsewhere to the lawyer’s supervisors will not be realistic because the lawyer fears either immediate termination or retaliation.⁷ This fear does not, however, relieve the lawyer of the responsibility to appropriately address the conflict.⁸ Alternatively, the lawyer may withdraw from the matter pursuant to SCR 20:1.16(b)(1) if the withdrawal could be accomplished without material adverse effect on the client.

2) Disclosure and Consent: Conflicts arising pursuant to SCR 20:1.7(a)(2) may be subject to consent by the affected client if the conditions set forth in SCR 20:1.7(b) are met. If the lawyer believes that the conflict is consentable, the lawyer must ensure that the conflict waiver meets the informed consent standard, is in writing and is signed by the affected client.

3) Cessation of discussions about employment: While putting the possibility of future employment with an opposing firm “on hold,” may resolve the issue, the job seeking lawyer must still consider whether the prospect of future employment still creates need for disclosure and consent.

Actively Seeking

While the conflicts that arise from job negotiations are generally subject to client consent, the requirement for disclosure and consent comes when the lawyer is actively seeking employment from the firm representing the client’s opponent.

If defense counsel is actively seeking to become an assistant district attorney, the clients are entitled to be made aware of that fact when considering their choice of counsel.

Endnotes

¹ See SCR 20:1.7(a)(2), ABA Comment [10].

² See §125, cmt. d.

³ See ABA Formal Opinion 96-400 and DC Bar Ethics Opinion 367.

⁴ Note that the fact the district attorney’s office was in a neighboring county does not alter the analysis. For purposes of the Rules, district attorney’s offices, like public defender’s offices, are offices of one statewide law firm. See Wisconsin Ethics Opinion EF-11-02.

⁵ Note that the analysis would be the same if the lawyer who was seeking a position at the district attorney’s office was a staff public defender.

⁶ This is possible because, as discussed below, the conflict of the job-seeking lawyer is normally not imputed to other lawyers in the firm.

⁷ There are situations, however, where the firm is aware that the lawyer is seeking another job, such as when an associate has been told they are unlikely to make partner and the firm encourages the associate to seek a new job.

⁸ The Rules do sometimes require lawyers to put the interests of clients ahead of their own interests and the lawyer may have to choose between notifying the client and the firm or forgoing the job search. If a lawyer does notify their firm of a conflict arising from a job search, supervisory lawyers within the firm should be mindful of their obligations to clients. See SCR 20:5.1.