ETHICS COMMITTEE OPINION NO. 17-02
THIS OPINION IS ADVISORY ONLY
QUESTION PRESENTED
I. May a lawyer move to unseal court records on behalf of a client
if the court records were sealed pursuant to a request from another
lawyer in the same law firm on behalf of a former client?
II. Even if the former client waives disqualification of the lawyer
from seeking to unseal court records from the former client’s case,
may the lawyer continue to represent the current client and proceed
with the motion to unseal the court records?
OPINION
I. A lawyer may not move to unseal court records on behalf of a
current client if the court records were sealed pursuant to a request
from another lawyer in the same law firm on behalf of a former
client unless the former client waives the imputed disqualification
of the law firm.
II. Even if the former client properly waives the imputed
disqualification, the lawyer must likely withdraw from further
representing the current client because the lawyer cannot use
information related to the representation of the former client to
former client’s disadvantage in a substantially related matter, and
the lawyer’s conduct creates the appearance of impropriety.
APPLICABLE NORTH DAKOTA RULES OF
PROFESSIONAL CONDUCT
Rule 1.9, N.D.R. Prof. Conduct: Duties to Former Client.
Rule 1.10, N.D.R. Prof. Conduct: Imputed Disqualification: General
Rule.
FACTS PRESENTED
This matter concerns a lawyer (“L1”), who is the sole name partner of
a law firm (“Firm”). The Firm previously employed associate counsel.
One of those associate counsel (“L2”) previously represented a client
(“Former Client”) and filed a motion to seal court records on behalf
of Former Client, which was granted. Former Client was a non-
governmental client. L2 then left the Firm.
Without knowledge of L2’s representation of Former Client, L1
moved to unseal the Former Client’s court records. L1 filed the
motion on behalf of a new client (“Current Client”) in two criminal
cases because L1 believed the sealed court records could possibly
contain exculpatory information for the benefit of Current Client.
After filing the motion to unseal the court records, L1 was contacted
by opposing counsel and informed the Firm had previously moved to
seal the court records. L1 submitted a request for an opinion about
whether Ll could permissibly pursue the motion to unseal and, if
not, whether L1 was disqualified from representing Current Client
or otherwise must withdraw due to a conflict of interest between the
interests of Current Client and Former Client.
DISCUSSION
An overriding consideration for the below analysis is that the
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comments to the Rules of Professional Conduct recognize that loyalty
is an essential element in a lawyer’s [and a firm’s] relationship to a
client. N.D.R. Prof. Conduct L7, cmt. 1; N.D.R. Prof. Conduct 1.10,
cmt. 5; Cont’l Res. v. Schmalenberger, 656 N.W.2d 730, 735 (N.D.
2003).
I. L1 Is Prohibited from Pursuing the Motion to Unseal Unless
Former Client Waives the Imputed Disqualification of the Firm.
Rule 1.10, N.D.R. Prof. Conduct governs imputed disqualification
between lawyers associated in a firm, when a lawyer becomes
associated with a firm, and when a lawyer has terminated an
association with a firm.
In this case, at the time L2 moved to seal the court records on behalf
of Former Client, he was associated with Ll’s Firm. At the time
Ll moved to unseal the court records, L2 was no longer associated
with the Firm, and Former Client was no longer an active client.
N.D.R. Prof. Conduct 1.10(c) provides that “[w]hen a lawyer has
terminated an association with a fir