2007 Issue 1 - New York City Bar Association

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P R O F E S S I O N A L A N D J U D I C I A L E T H I C S lawyer’s “class rank” at the firm, (c) retains the lawyer’s benefits under the firm’s pension plan, or (d) can send and receive e-mails through the firm’s e-mail servers (but without access to confidences and secrets of the firm’s clients). On the other hand, when the seconded lawyer spends some of the lawyer’s time at the host organization and the balance at the law firm, working for other clients of the firm (a “partial secondment”), the seconded lawyer remains associated with the firm. See ABCNY Formal Op. 1996-8, ABA Op. 90-357 (1990). III. The Law Firm’s Continuing Supervision of the Seconded Lawyer We now consider whether the seconded lawyer remains associated with the law firm if the law firm continues to supervise the seconded lawyer in connection with the seconded lawyer’s representation of the host organization. In approaching this question, we are mindful of the recent admonitions of the Court of Appeals for the Second Circuit in Hempstead Video, Inc., in which the Court rejected any per se rule in determining the analogous question whether an “of counsel” attorney was associated with a law firm, and held: A per se rule has the virtue of clarity, but in achieving clarity, it ignores the caution that “[w]hen dealing with ethical principles, . . . we cannot paint with broad strokes. The lines are fine and must be so marked.” Silver Chrysler [Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751, 753 n. 3 (1975) (quoting United States v. Standard Oil Co., 136 F.Supp. 345, 367 (S.D.N.Y.1955)). 409 F.3d at 135. The Court of Appeals underscored that: Imputation is not always necessary to preserve high standards of professional conduct. Furthermore, imputation might well interfere with a party’s entitlement to choose counsel and create opportunities for abusive disqualification motions. Id. at 135-36. We consider first the circumstance when the host organization requests the law firm to continue to supervise the seconded lawyer in concluding a representation of the host organization that the seconded lawyer began while at the law firm. In this limited, transitional circumstance, we do not believe either that any additional conflicts would be imputed T H E R E C O R D 160
F O R M A L O P I N I O N 2 0 0 7 - 2 to the law firm, or that the seconded lawyer would remain associated with the firm. First, the law firm has been representing the host organization all along in the matter, so the law firm continuing to work on the matter does not by itself create any additional conflict. Second, there is little difference between the law firm continuing to supervise the seconded lawyer in this circumstance, and the host organization engaging the law firm to complete that representation and to work with the seconded lawyer as a representative of the host organization. To conclude either that additional conflicts would be imputed or that the seconded lawyer would remain associated with the law firm would elevate form over substance and create an unjustifiable rift between the host organization on the one hand and the seconded lawyer and the law firm on the other, undermining the host organization’s right to the counsel of its choice. Levine v. Levine, 56 N.Y.2d 42, 451 N.Y.S.2d (1982) (recognizing, in the context of law-firm conflicts, that the right to counsel is a fundamental right). But these considerations are entitled to less weight if the law firm supervises the seconded lawyer in connection with one or more new representations of the host organization. Moreover, even one significant new representation in which the law firm supervises the seconded lawyer could result in the sort of close and regular relationship between the seconded lawyer and the law firm that would likely result in conflicts being imputed and the lawyer being considered associated with the firm. Hempstead Video, Inc., supra. Finally, if the law firm supervises the seconded lawyer in connection with the seconded lawyer’s representing other clients of the law firm, this would be a partial secondment, and, as discussed above, conflicts would be imputed to the law firm. IV. The Effect of Different Compensation Arrangements on the Determination of <strong>Association</strong> and the Imputation of Conflicts We next consider whether, if the firm continues to pay the seconded lawyer during the secondment, or if the host organization pays the firm for the secondment, the seconded lawyer remains associated with the firm, or conflicts are otherwise imputed to the firm. If the law firm pays the seconded lawyer during the secondment, this alone does not result in the imputation of conflicts to the firm, or make the lawyer associated with the firm, so long as the seconded lawyer’s professional judgment is not directed by the firm and the lawyer lacks access to the confidences and secrets of the firm’s clients. Cf. DR 5-107(B) (with the consent of the client, a lawyer may accept compensation for legal services from one other 2 0 0 7 V O L. 6 2 , N O. 1 161
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THE RECORD OF THE ASSOCIATION OF TH
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Of Note THE NEW YORK CITY BAR PRESE
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2007 Issue 1 - New York City Bar Association

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