AugustReport - page 7

August 2013 CBA REPORT
l
7
cover article
the conflicts of a lawyer who practices in
multiple firms will be imputed across all
of the firms.”
30
Thus, “all of the firms in
which a lawyer practices will be treated
as one firm for purposes of imputation,”
unless the conflict could be “amelio-
rated” in compliance with Rule 1.10.
31
The imputation rule would include the
conflict situations described in Rule
1.8, “such as business transactions with
clients, the use of information to the
disadvantage of a client, the solicitation
of gifts from clients, and providing finan-
cial assistance to clients[.]”
32
Finally, the
board cautioned that lawyers practicing
in multiple firms “must notify all of the
applicable firms of the lawyer’s other firm
associations.”
33
Non-conflict considerations “fall into
the general categories of confidentiality,
communication, advertising, professional
independence, and fiduciary responsi-
bilities,” according to the board.
34
“[L]
awyers practicing in multiple firms have
to take scrupulous care to maintain client
confidences across all associated firms,”
and “a lawyer must inform his or her
clients of all multiple practice associa-
tions.”
35
Furthermore, a lawyer “should
decline any additional firm associations
if the lawyer’s obligations to any one of
the firms would interfere with profes-
sional independence and judgment.”
36
Finally, the board cautioned that “a
lawyer’s fiduciary responsibilities to a
firm’s members may prevent association
with additional firms,” although it noted
that that issue fell outside the board’s
advisory authority, recommending only
that “lawyers carefully research any fidu-
ciary issues before embarking on practice
in multiple firms.”
37
Fiduciary Issues in Multi-Firm
Practice
Relevant fiduciary issues were ad-
dressed in Mason & Mesulam, Legal
Polygamy: Ethical Considerations Atten-
dant to Multiple Law Firm Affiliations,
29 Law. Man. Prof. Conduct 75 (2013),
cited in the opinion. In that article, the
authors noted that “[a] lawyer – whether
a partner, associate or of counsel – has a
fiduciary duty to any law firm in which
the lawyer practices. When the lawyer
practices at two firms, the lawyer has
fiduciary duties to both firms.”
38
They
listed the following as examples of ques-
tions that might arise in the context of
multi-firm employment: “[I]f a pro-
spective client comes to a lawyer who
practices at multiple firms, which firm
gets the engagement? Does the lawyer
who has a solo practice, but is also as-
sociated with a multi-lawyer law firm,
violate a fiduciary duty to the latter if the
lawyer sends the best and most lucrative
cases to his solo practice?”
39
According to the authors, those were
not insurmountable issues, but they
needed to be discussed and resolved in
advance.
40
In addition, the authors noted
that complications could arise where a
firm’s partnership agreement prevented
partners from engaging in outside busi-
ness or professional activities or required
that income derived from such activities
be paid to the firm.
41
They suggested
that “a carefully drafted side letter to the
standard employment agreement may be
necessary to allow an attorney to pursue
or maintain multiple affiliations.”
42
Conclusion
As the opinion suggests, a lawyer
practicing with multiple firms has more
to worry about than the Biblical admoni-
tion against serving two masters.
43
The
lawyer must address significant ethical
concerns before embarking on such a
venture. If the lawyer can successfully
address those concerns, however, he or
she may now, in the board’s view, prac-
tice simultaneously with multiple firms.
Finke is an attorney at Graydon Head, where he
practices in the litigation group and assists with ethics
issues. Before joining the firm in 1984, he clerked for
two years for Chief United States District Judge Carl B.
Rubin. Finke is a member and former chair of the CBA
Ethics Committee.
1 Matthew 6:24, King JamesVersion (“No man can serve
two masters: either he will hate the one, and love the
other; or else he will hold to the one, and despise the
other.”).
2
Advisory Opinion 2013-1
,The Supreme Court of Ohio’s
Board of Commissioners on Grievances & Discipline
[hereinafter Board], 1 (April 4, 2013)
3 Id.
4 Id. at 7.
5 Id. at 1.
6
Advisory Opinion 89-35
, Board, 1 (Dec. 15, 1989).
7 Id.
8 Id.
9
Advisory Opinion 97-2,
Board, 1-2 (April 11, 1997).
10 Id. at 2.
11
Advisory Opinion 99-7,
Board (Dec. 2, 1992).
12 Id.
13 Id.
14
Advisory Opinion 2013-1
, Board, 4 (April 4, 2013);
15
Advisory Opinion 2013-1
, at 4 (quoting
Advisory Opinion
2008-1
, at 3).
16
Advisory Opinion 2008-1
.
17
Advisory Opinion 2013-1
, at 4 (citing opinions from the
ABA and other jurisdictions).
18 See id. at 5.
19 Id.
20 Id. at 3.
21 Id. at 6.
22 Id.
23 Id.
24 Id.
25 Id.
26 Id.
27 Id.
28 Id. at 7.
29 Id.
30 Id.
31 Id.
32 Id. (citing Ohio Rules of Prof. Con. 1.8).
33 Id.
34 Id. at 8.
35 Id.
36 Id.
37 Id.
38 Mason and Mesulam at 2.
39 Id.
40 Id. at 3.
41 Id.
42 Id.
43 See supra n.1.
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