Texas Lawyer Can Migrate Conflicts from Public Work at Old Firm

A Texas lawyer who works for public entities at a private firm will create conflicts of interest for other attorneys if he moves to another firm that is routinely in opposition to those public entities, the State Bar of Texas said.

The bar’s Professional Ethics Committee was asked if a lawyer who regularly represents municipalities can join an adverse firm without creating a conflict for other attorneys at the new firm. Secondarily, the committee was presented a question about whether the public entities’ open meetings and records could help avoid conflicts.

The committee said in a February opinion that, under Rule 1.09 of the Texas Disciplinary Rules of Professional Conduct, a migrating lawyer is prohibited from representing any client if the matter is adverse to a client the lawyer personally represented before in related matters. If the migrating lawyer is personally conflicted under Rule 1.09, the committee said, “all lawyers in the hiring law firm will share the same conflict while the migrating lawyer remains in the firm.”

The committee also rejected the notion that the “generally known” exception to a lawyer’s confidentiality obligations under Rule 1.05 would allow the hiring firm to avoid the migrating lawyer’s conflicts because of the public entities’ generally open meetings and records.

The committee said the “fact that a public entity may engage with or discuss pending legal matters or advice with its lawyers in an open session” doesn’t “make all the public entity’s client confidential information ‘generally known.’”

The committee also said Rule 1.10, which allows ethical screening for government lawyers who move to a private firm, can’t apply to a lawyer who represented public entities at a private firm. The rule applies to former public officers or employees, the committee found.

The opinion is Texas Bar Ethics Advisory Comm., Op. No. 693, 02/22.