When a lawyer who transfers to another firm possesses confidential information relevant to a matter respecting the former client that may prejudice a former client if disclosed to a member of the new firm, the new firm must cease representing its client in the matter unless:

 

(See rule 3.4-20 of the Code of Conduct).

 

This reveals how critical it is to have a robust conflict checking system in place. While it is possible that the former client will consent to the new firm’s continued representation of its client, it is also possible that they may not consent.  If the client does consent, the firm must take “reasonable measures” to ensure that no disclosure of confidential information will occur.  See paragraphs [1] - [3] of the commentary to rule 3.4-20 of the Code of Conduct for guidance.  The new firm must exercise professional judgement in determining what steps it will take to ensure that no disclosure of the former client’s confidential information will occur to any member of the new law firm.  Note that the guidelines will also apply, with necessary modifications, to non-lawyer staff members moving between law firms.

 

It is essential to deal with issues arising out of transfers between firms promptly; failure to raise such issues promptly may prejudice clients and may be viewed as sharp practice on the part of the lawyer who failed to raise the issues in a timely manner.  After completing the interview process, the new law firm should determine whether any conflicts exist.  During the interview process, you must take care not to disclose any client confidences.  A lawyer may disclose confidential information to the extent reasonably necessary to detect and resolve conflicts of interest arising from a lawyer’s change of employment. See rule 3.3-7 of the Code of Conduct, and paragraphs [4] to [6] of the commentary to rule 3.4-20 for additional guidelines. 

Even if all the necessary steps have been taken and the client has consented to the representation, a lawyer transferring to a new law firm who possesses confidential information relevant to a matter respecting a former client that may prejudice the former client if disclosed to a member of the new law firm must not, unless the former client consents:

 

(See rules 3.4-21 to 3.4-23 of the Code of Conduct).

 

This prohibition on discussing the representation extends to discussions between the members of the new law firm and the transferring lawyer and to each member and employee of the law firm. There is a general duty on lawyers and law firms to exercise due diligence in the supervision of non-lawyer staff and lawyers to ensure that they comply with the duty not to disclose confidences of clients of firms in which the employee has worked.