Lawyer Mobility and Legal Ethics: Resolving the Tension between Confidentiality Requirements and Contemporary Lawyers' Career Paths

Abstract

When a lawyer moves from one firm to another, compliance with two separate ethical obligations can be extremely difficult: keeping information about former clients confidential and avoiding conflicts with interests of those clients. Avoiding conflicts usually requires disclosing confidential information about the former clients in order to discover if aspects of the new law firm's practice may represent conflicts with those clients' interests. The near impossibility of simultaneously complying with both ethical obligations has always posed a theoretical problem. However, in the traditional landscape of legal practice - where lawyers rarely moved between firms - the problem rarely arose and therefore, was easier to ignore. Current law practice has changed. Lawyer mobility between firms is now a prevalent career path. This new reality leads to this Article's two inquiries. First, how satisfactory are the current approaches to moderating the requirement of confidentiality in order to facilitate the discovery of potential conflicts? And second, if the increase in lawyer mobility reflects societal perceptions that providing legal services is becoming more like a business and less like a profession, should ethics requirements support and regularize that developing conception or should they seek to reinforce the traditional view that the practice of law is a profession?