The Lateral Partner and the Buyout Her New Firm Is Suing Over
Attorney Mara has represented Deacon, the majority shareholder of Northline Logistics, for six years, including drafting his employment agreement and advising him personally on the 2022 buyout of a minority shareholder. Mara then left Firm A and joined Firm B as a partner. Three weeks later, Firm B was retained by Trask, the minority shareholder who sold in the 2022 buyout, to sue Northline and Deacon for breach of fiduciary duty in connection with that same transaction. Mara's name appears on the engagement letter because the litigation group wanted a supervising partner with corporate experience. Firm B posted a screen, but it was created only after Mara attended the initial strategy meeting, received the full case file by email, and commented on the valuation theory. Deacon learns of the engagement and moves to disqualify Firm B. Trask refuses to consent to any condition that removes Mara's firm, and Deacon refuses to waive. Firm B argues that Deacon is only a former client, that the screen is adequate, and that disqualification would prejudice Trask.
1. Is Mara personally disqualified? Analyze under the former-client rule, including material adversity and substantial relationship.
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A lawyer who has formerly represented a client in a matter may not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the former client, absent informed consent confirmed in writing.
Former client. Deacon's representation ended when Mara changed firms; the relationship is over. That does not diminish the duty of confidentiality, which continues indefinitely.
Material adversity. Trask's suit names Deacon as a defendant and seeks damages from him personally. That is adversity in its plainest form.
Substantial relationship. The test asks whether the matters are substantially related, which turns on whether confidential information from the prior representation would materially advance the new client's position. Here the overlap is not incidental: the 2022 buyout is the very transaction challenged, and Mara advised Deacon personally on it, including his employment agreement. She likely knows his negotiating posture, his valuation assumptions, his concerns about the minority holder, and his personal financial exposure. The new matter would give Trask a roadmap into exactly those confidences. The relationship is substantial on the face of the engagement.
Consent. Deacon refuses, and Trask cannot consent on his behalf.
Conclusion: Mara is personally disqualified under rule 1.9(a) and independently under 1.9(c) for using or revealing information relating to the former representation. No amount of screening cures the personal disqualification; screening addresses imputation, not the individual lawyer's own duty.
2. Can Firm B avoid imputed disqualification through a screen? What facts defeat the screen here, and how does the answer differ across jurisdictions?
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Under the ABA Model Rules, a lateral hire's former-client conflict is imputed to the new firm but may be cured by screening in defined circumstances: the prohibition arises under the former-client rule, the newly associated lawyer is timely screened, written notice is given to any affected former client, and the firm certifies compliance and does not charge the former client for the screening. Several jurisdictions have adopted this approach; others, notably California, permit screening only in narrower circumstances and generally require the former client's informed written consent where the lawyer acquired material confidential information. Counsel must check the forum's rule, because the outcome can turn on it.
The screen here fails on its own terms even in a screening jurisdiction. Timeliness is the core requirement, and this screen was erected after the lawyer was exposed to the matter: Mara attended the strategy meeting, received the file, and shaped the valuation theory. Information cannot be unscreened once absorbed. A screen is a prophylactic against future flows, not a purge.
Two further problems. The engagement letter names Mara as supervising partner, which suggests a continuing role inconsistent with a true screen, and the firm's failure to notify Deacon in writing undercuts the certification requirement. Firm B cannot cure these defects retroactively.
The result is that the conflict is imputed firmwide and disqualification of Firm B follows, subject only to Deacon's consent, which he has declined to give.
3. Assuming disqualification is established, how should the court weigh Trask's prejudice, and what lesser remedies are available?
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A disqualification motion is not a mechanical order. Courts balance the former client's interest in confidentiality, the integrity of the proceedings, the current client's interest in counsel of choice, the stage of the litigation, and the risk of tactical abuse - motions filed on the eve of trial to gain delay are scrutinized.
On these facts, the balance favors disqualification. The breach is not technical; it involves actual access to the file and participation in strategy, which creates a real risk that Deacon's confidences will inform the case. Delay is modest because the matter is at its outset, and Trask can retain new counsel without losing discovery or trial dates. Trask's prejudice is cost and inconvenience, which are compensable through fee adjustments, not a reason to tolerate a tainted representation.
The court should consider lesser remedies and explain why they are insufficient: (1) a stricter screen with Mara excluded from any profit share from the matter, which does not address the information she already holds and shared; (2) permitting Firm B to continue if Trask retains separate trial counsel while Firm B handles only matters Mara never touched, which is impractical where the entire case concerns the buyout; and (3) limiting Mara's role to non-litigation work, which does not cure the firm's imputed knowledge.
The court should also note the hot-potato problem if the firm had dropped Deacon to convert him into a former client, which did not occur here but is a recurring evasion. Finally, the firm should be ordered not to charge Trask for time spent on the motion and screening, consistent with the duty not to shift the cost of the conflict to the client.