The Committee on Ethics and Professionalism is pleased to sponsor this Ethics Corner column as a service to Westchester County Bar Association members and the public. To suggest future topics, email Committee Chair David Evan Markus at davidevanmarkus@ gmail.com.

A firm’s managing partner prepares to sign an experienced lateral attorney. First the firm must perform a conflict check¹ —which can derail the hire.

Until recently, Rule 1.10 governing imputed conflict was straightforward: an entire firm generally was conflicted if any of its lawyers was conflicted under Rules 1.7 (current clients), 1.8 (interests) or 1.9 (former clients).² Lacking exceptions to imputed conflict, an inflexible Rule 1.10 forced firms to choose between their clients and potential incoming lateral hires. Seeking a more targeted approach, the New York State Bar Association’s Committee on Standards of Attorney Conduct (“COSAC”) proposed, and the Judiciary approved,³ reforms of Rule 1.10 effective January 1, 2025. This Ethics Corner column explores the revised Rule 1.10— now somewhat more flexible and permissive, but also more nuanced.

Conundrums of Rigidly Imputing Conflict

New York was one of just six states to treat all conflicts equally for imputation purposes.⁴ In this minority view, a lawyer who represented a former client with interests adverse to a current firm client, a lawyer merely having their former client’s material confidences, and a lawyer with only a personal interest adverse to a firm client, each could disqualify the whole firm. This dynamic impeded lateral moves and freighted mergers.

COSAC argued that some conflicts are too technical to justify imputing them, and that New York’s rigid rule was overbroad to the purpose of preventing divided loyalty:

The New York rule [was] an unrealistic standard that create[d] a conflict where, as Comment [3] to ABA Model Rule 1.10 puts it, “neither questions of client loyalty nor protection of confidential information are presented.” Many personal conflicts affecting one lawyer in a firm pose no risks whatsoever to clients of other lawyers in the firm. For example, if a spouse of a lawyer in a large firm works for the contractual counterparty of the firm’s client, or if the strong religious or political beliefs of one lawyer in the firm would prevent that lawyer from working on a particular matter, there is typically no risk that the independent professional judgment of other lawyers in the firm would be affected.⁵

COSAC similarly opined that wholefirm disqualification, just for having former clients’ files, was “too harsh” now that firms passively retain digital files indefinitely.⁶ On the other hand, repealing imputed conflict would swing the ethics pendulum too far the other direction. Divided loyalty could arise, for instance, if a firm did access those files, or in “unusual cases” of personal conflict.⁷

COSAC thus proposed retaining but softening the imputed conflict rule.

A New and Improved Rule

1.10 The amended Rule 1.10 adopted COSAC’s nuanced approach. Here are the highlights:

A two-part exception test.

Rule 1.10(a) no longer automatically imputes conflict arising from non-representational interests. A conflict is not imputed if (1) it arises from a “lawyer’s own financial, business, property or other personal interests”; and (2) “under the circumstances, a reasonable lawyer would conclude that there is no significant risk that the [firm’s] representation will be materially limited or that the independent professional judgment of the participating lawyers in the firm will be adversely affected.”⁸ This reasonableness standard, while new to Rule 1.10, is a mainstay of Rule 1.7(a)(2) for direct conflict. As ethical common sense should suggest, under Rule 1.7(a)(2) a lawyer cannot represent a child in a custody matter after having a relationship with a contesting parent,⁹ or pay one’s spouse as care manager for an elder ward.¹⁰ Both call into doubt the lawyer’s undivided loyalty to the client’s best interest. Conversely, a firm that retains a physician as a paid expert witness can draft the physician’s will: those interests do not diverge.¹¹

This reasonableness inquiry under Rule 1.7(a)(2) for a lawyer—and thus arguably under Rule 1.10(a) for a firm—turns on potentially “differing interests,” which Rule 1.0(f) defines as “interest[s] that will adversely affect either the judgment or the loyalty of a lawyer to a client, whether [they] be conflicting, inconsistent or [merely] diverse.” This standard considers (1) the client’s goals, (2) who else might gain or lose in the representation, and (3) “possible financial, political, business, property, social and other personal implications for the lawyer” based on the matter’s outcome and whether it serves the client’s goals.¹² “If any of these factors trigger a signal inside the lawyer’s head or heart,”¹³ then a conflict may lurk under Rule 1.7(a)(2)— and with it an imputed conflict despite the Rule 1.10 reforms. A firm inclined to conclude that reasonableness weighs against disqualification might bolster its position ethically—and before a reviewing court—by commending the issue to a disinterested ethics attorney outside the firm.

The screening remedy.

Nodding to business realities, Rule 1.10(c)(2) allows a firm to avert imputed disqualification due to a newly associated attorney’s representational conflicts by “promptly and reasonably” screening off the lawyer, notifying firm staff of the disqualification, notifying the lawyer’s adverse former clients, and not apportioning fees from conflicted matters to that lawyer.¹⁴ This screening remedy is unavailable, however, for litigators who substantially managed, directed or exercised day-to-day control of the prior matter generating the conflict.¹⁵

Still unclear are the practicalities of denying screened-off equity partners fee allocations from conflicted matters. Must compliance with Rule 1.10(c)(2) reduce the screened-off partner’s equity or revenue share, or does the fungibility of money allow a firm to make the partner whole by other means? We recently put that question to COSAC and await response: stay tuned.

Conflicts arising from stored files. Gone is automatic disqualification merely for storing confidential information of a former client having interests materially adverse to a current client. Rule 1.10(b) no longer requires disqualification if all lawyers who worked on the former client’s matter left the firm and remaining lawyers do not access or otherwise know the former client’s material confidences.

Unchanged waivers.

Where imputed conflicts remain, Rule 1.10(d) still allows current and former clients to waive them with informed consent. The waiver process has not changed.

Disqualification motions.

The only case to date under amended Rule 1.10 disqualified a firm from representing a plaintiff because, during the representation, the firm associated with the lawyer who had represented the defendant in the same case. The firm opposed disqualification on grounds that the firm screened off the lawyer, no other firm lawyer knew the defendant’s material confidences, and the lawyer left the firm before the disqualification motion. The Appellate Division disagreed, holding that the firm was presumed to acquire the defendant’s material confidences upon the lawyer’s association, and could not cure the resulting conflict by screening because “screening lawyers permits adversity to [lawyers’] former clients on a matter only after [the lawyers] have left the firm”—not during the conflicted matter’s pendency.¹⁶ It therefore was irrelevant that the disqualification motion came after the lawyer left the firm: by then, the ethical damage already was done. Given these unusual facts, whether and how courts will follow Rule 1.10 ethics reforms in deciding disqualification motions may turn on more nuanced cases.¹⁷

Conclusion: Think Deeply

Rule 1.10 now offers lawyers and firms some flexibility to navigate personal conflicts, passively retain digital files and use screening to reduce some barriers to attorney mobility. Flexibility implies complexity and nuance—and should. After all, ethics rules should make us think deeply. The Rule 1.10 amendments will succeed most fully if they do just that.

Endnotes

1 22 N.Y.C.R.R. [Joint Rules of the Appellate Division] § 1200, Rule 1.10(e)(3).

2 Former N.Y. Rule 1.10(a).

3 47 N.Y. Reg. 193 (Jan. 29, 2025); AO (Zayas) 399/2024 (Dec. 21, 2024).

4 See N.Y. State Bar Assn., Memorandum to David Nocenti (May 13, 2024), at 1, available at https://tinyurl. com/484avtry (accessed Jun. 4, 2025).

5 Id., at 2, quoting A.B.A. Model Rule 1.10, Comment [3].

6 Id., at 3.

7 Id.

8 22 N.Y.C.R.R. § 1200, Rule 1.10(a) (1), (2).

9 See In re Groom, 150 A.D.3d 131, 140 (2d Dep’t 2017).

10 See Matter of D’Angelo, 158 A.D.3d 107, 116-117 (2d Dep’t 2017).

11 See N.Y. State Bar Assn. Ethics Op. 1140 (2017).

12 Simon’s N.Y. Rules of Professional Conduct Ann. § 1.7:54 (July 2024 ed.).

13 Id.

14 22 N.Y.C.R.R. § 1200, Rule 1.10(c)(2) (i)-(iv).

15 See 22 N.Y.C.R.R. § 1200, Rule 1.10(c) (3).

16 Hotel 237, LLC v. G.M. Canmar Residence Corp., 235 A.D.3d 447, 448 (1st Dep’t 2025); see Kassis v Teacher’s Ins. & Annuity Assn., 93 N.Y.2d 611, 617-619 (1999).

17 See T. Maulsby, “Key Amendments to the New York Rules of Professional Conduct,” N.Y.L.J., Apr. 1, 2025, at 6.

David Evan Markus, Esq., chairs the WCBA Committee on Ethics & Professionalism and the WCBA Special Committee on the Future of the Bar, and is elected to the New York State Bar Association House of Delegates and WCBA Executive Committee. He serves as Referee in Supreme Court, Ninth Judicial District, and previously served as Statewide Special Counsel for Programs and Policy for Chief Judges Judith Kaye and Jonathan Lippman.