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August 2013 CBA REPORT
cover article
can be accomplished without violation of
the applicable ethics rules.”
17
The Board’s
Volte-Face
Having thus reviewed its own history
and summarized the views of other juris-
dictions, the board began its about-face.
Noting that it had rarely set forth its
position on a single issue in three sepa-
rate opinions as it had here, and making
clear that it “carefully considers any
reversal of course and generally defers to
its prior advice,” the board said that “in
this instance the board finds substantial
justification for a new perspective on
practice in multiple firms.”
18
The board
then “identified at least six reasons for a
withdrawal of its long-standing posi-
tion.”
19
First, the board cited the court’s
1995 repeal of the language of Gov. Bar
R. III (3)(D) that prohibited a lawyer’s
involvement with multiple legal profes-
sional associations.
20
Second, the board
noted that it had not considered practice
in multiple firms since the adoption of
the rules in 2007, noting that “[n]o Rule
of Professional Conduct or Rule for the
Government of the Bar prohibits practice
in multiple firms[.]”
21
Third, the board pointed to Advisory
Opinion 2008-1, issued after the adop-
tion of the rules, which allowed lawyers
to maintain multiple “of counsel” rela-
tionships with different firms. The board
rightly recognized that “[i]f lawyers may
be members of multiple firms for ‘of
counsel’ purposes, it seems contradic-
tory to prohibit actual membership or
employment with multiple firms.”
22
Fourth, the board cited the views of
other jurisdictions. It concluded that
the prevailing view was “that practice in
multiple firms is permissible if it other-
wise complies with the applicable rules of
ethics.”
23
Fifth, the board noted the “expan-
sive” definition of “firm” and “law firm”
in Rule 1.0(c), which included “lawyers
employed in a private or public legal aid
or public defender organization, [or] a
legal services organization[.]”
24
Using
that definition, a lawyer could not, under
the board’s prior view, work for a legal
aid, public defender, or legal services or-
ganization while also engaged in private
practice.
25
The board said, “This practice
restriction contravenes a lawyer’s respon-
sibility to ‘seek improvement of the law,
and sure access to the legal system, [and]
advance the administration of justice,” as
set forth in the preamble to the rules.
26
The board’s final reason was a practi-
cal one. The board recognized that “the
financial reality of the current practice of
law, especially in small communities, is
that lawyers may have to create full-time
employment through part-time positions
in different practice environments. The
board does not believe it is appropriate
to impede a lawyer’s ability to generate
full-time work if it may be accomplished
in compliance with the rules.”
27
Ethical Considerations
Having decided to lift the prohibi-
tion on multi-firm practice, the board
reaffirmed its belief “that there are
significant ethical issues for lawyers to
consider if they practice in more than
one firm.”
28
The board then offered guid-
ance on those issues.
The board cited conflicts of interest
as “[t]he primary concern.”
29
It said that
a lawyer practicing in multiple firms
“must conduct conflict checks that span
all of the lawyer’s firms… In addition,
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