The Oklahoma Bar Journal February 2023

prohibited from representing a client with interests adverse to those of a prospective client unless the lawyer has actually received information that could be signifi cantly harmful in the matter. Also, no screening procedure comparable to that found in ORPC 1.18(d) is available to former clients. IMPUTATION OF CONFLICTS The general rule of imputations of conflict of interest contained in ORPC 1.10 is that lawyers associ ated in a firm may not represent a client when any one of them would be prohibited from doing so under 1.7 or 1.9. When a law yer has terminated an association with a firm, the firm is not prohib ited from representing a person with interests materially adverse to a client represented by the for merly associated lawyer and not currently represented by the firm, unless the matter is the same or substantially related to the matter in which the formerly associated lawyer represented the client or any lawyer remaining with the firm has confidential information material to the matter. Disqualifications under Rule 1.10 may be waived in writing by the affected client or clients on the conditions stated in Rule 1.7. Informed consent is defined in ORPC 1.0(e) and further clarified

in 1.7 Comments [18] and [19]. Informed consent may not cure all disqualifications. It may be impos sible to obtain informed consent if the lawyer is unable to make the necessary disclosure(s). ETC. The disqualification of lawyers associated in a firm with former or current government lawyers is governed by specific rules con tained in ORPC 1.11. ORPC 6.5 also contains a special conflict rule for short-term lim ited legal services provided by a nonprofit or court-annexed legal service program. Lawyers should be aware of their duties to prospective clients. Lawyers should also be aware of who is a prospective client and what disqualifies the lawyer and associated lawyers from repre sentation of parties adverse to the prospective client. Lawyers should know how those disqualifications may be avoided or cured. Mr. Stevens is OBA ethics counsel. Have an ethics question? It’s a member benefit, and all inquiries are confidential. Contact him at richards@okbar.org or 405-416-7055. Ethics information is also online at www.okbar.org/ec.

Subsection (d) of 1.18 provides a screening process to avoid the imputation of a disqualification. When a lawyer has received dis qualifying information, represen tation is permissible if: (1) both the affected client and the prospective client have given informed consent, con firmed in writing, or: (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to repre sent the prospective client; and

(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (ii) written notice is promptly given to the prospective client.

Prospective clients receive some, but not all, of the protections afforded to current or former clients. ORPC 1.9 prohibits a representation adverse to a former client if there “is a substantial risk that confiden tial factual information as would normally have been obtained in the prior representation would mate rially advance the client’s position in the subsequent matter.” ORPC 1.9 Comment [3]. A lawyer is not

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THE OKLAHOMA BAR JOURNAL