Ethical Issue For Applying to Defense Firms Forum

[Anonymous User]

Looking for advice from any current attorneys on something that has come up recently in my job search. I’m currently working as an attorney for a mid-size plaintiff’s side firm that does some toxic tort litigation, including asbestos litigation. I don’t want to stay there though, and have been looking to apply to defense firms as well as other plaintiff’s firms. Recently, I am coming across an ethical issue that has to do with hiring conflicts. General defense firms that have a toxic tort defense practice (that includes asbestos defense) have dinged me automatically because it would be a conflict for me to be hired. This is a completely unforeseen/unexpected consequence of working at my current firm. Does anyone have any thoughts on how serious this conflict dilemma is/how negatively it might impact my attempts to lateral from my current firm to a defense firm? Am I now completely precluded from being hired at any defense firm that has an asbestos defense practice? Is there any way for me to get around this? I’m very concerned about this new development, thank you for any advice.

[Nightrunner]

Looking for advice from any current attorneys on something that has come up recently in my job search. I’m currently working as an attorney for a mid-size plaintiff’s side firm that does some toxic tort litigation, including asbestos litigation. I don’t want to stay there though, and have been looking to apply to defense firms as well as other plaintiff’s firms. Recently, I am coming across an ethical issue that has to do with hiring conflicts. General defense firms that have a toxic tort defense practice (that includes asbestos defense) have dinged me automatically because it would be a conflict for me to be hired. This is a completely unforeseen/unexpected consequence of working at my current firm. Does anyone have any thoughts on how serious this conflict dilemma is/how negatively it might impact my attempts to lateral from my current firm to a defense firm? Am I now completely precluded from being hired at any defense firm that has an asbestos defense practice? Is there any way for me to get around this? I’m very concerned about this new development, thank you for any advice.

If I remember my ABA rules correctly,* a firm hiring you would have to forego any litigation against any plaintiff you have represented on the same (or substantially similar) matters. So...if I'm them, it doesn't make much sense to hire you for an asbestos practice you can't practice in.

* - NOTE: I am not a lawyer, this is not legal advice, and most importantly I probably don't remember my ABA rules correctly.

[Anonymous User]

Looking for advice from any current attorneys on something that has come up recently in my job search. I’m currently working as an attorney for a mid-size plaintiff’s side firm that does some toxic tort litigation, including asbestos litigation. I don’t want to stay there though, and have been looking to apply to defense firms as well as other plaintiff’s firms. Recently, I am coming across an ethical issue that has to do with hiring conflicts. General defense firms that have a toxic tort defense practice (that includes asbestos defense) have dinged me automatically because it would be a conflict for me to be hired. This is a completely unforeseen/unexpected consequence of working at my current firm. Does anyone have any thoughts on how serious this conflict dilemma is/how negatively it might impact my attempts to lateral from my current firm to a defense firm? Am I now completely precluded from being hired at any defense firm that has an asbestos defense practice? Is there any way for me to get around this? I’m very concerned about this new development, thank you for any advice.

If I remember my ABA rules correctly,* a firm hiring you would have to forego any litigation against any plaintiff you have represented on the same (or substantially similar) matters. So...if I'm them, it doesn't make much sense to hire you for an asbestos practice you can't practice in.

* - NOTE: I am not a lawyer, this is not legal advice, and most importantly I probably don't remember my ABA rules correctly.

Could this have a significant impact on my ability to apply to defense firms, even if I wouldn't necessarily be looking to go into asbestos lit defense? I'm more interested in doing commercial/business litigation on the defense side, but am now just worried that I won't be able to apply to many general defense firms because of this ethical issue.

[Nightrunner]

Could this have a significant impact on my ability to apply to defense firms, even if I wouldn't necessarily be looking to go into asbestos lit defense? I'm more interested in doing commercial/business litigation on the defense side, but am now just worried that I won't be able to apply to many general defense firms because of this ethical issue.

Well you probably want to ask someone with more practice experience (i.e., one of the actual lawyers), for starters. But I think the key phrase is "substantially similar matters." So if your plaintiff-side experience is nicely quartered off in, say, asbestos, then you should be free of any conflict involving any non-asbestos litigation...I think.

[USAO-vet]

Just curious -- any particular reason you're considering going over to the dark side?

[Anonymous User]

Just curious -- any particular reason you're considering going over to the dark side?

OP here. Don't like the way my current firm is managed, and because I'm so early in my career (just graduated recently/passed my state's bar), I was hoping to keep my options open in the future for trying to lateral elsewhere. Again, absolutely did not think about the consequences of potential conflict when I began working at my current firm and am now pretty worried about how it might impact my job search.

[bdubs]

You can actually still work for them and not create a conflict if they screen you from the cases involving former plaintiffs that you worked with.

The bigger problem is probably that your current experience is most valuable in the cases where there will be a conflict.

[Liam]

The problem you face seems to be less about conflicts, and more about firms not wanting to go through the hassle of screening when they could just hire someone who is conflict-free. You could try applying to less competitive shops, but that runs the risk of you jumping over to someplace just as poorly-run/miserable as your current gig.

[Nightrunner]

The bigger problem is probably that your current experience is most valuable in the cases where there will be a conflict.

I thought about that, too. OP, how open are you geographically? Since your initial marketability hinges on a particular type of tort, you might in higher demand in a place where you could practice asbestos lit with few or no conflicts.

[Anonymous User]

OP here. I'm really targeting the larger market areas within my region. The thing is that I just happened to end up at a firm that does a significant amount of asbestos lit. It's not really the area I want to practice in, so that makes this potential conflict issue all the more annoying.

[hangtime813]

What market are you in? Depending on the market, all the asbestos firms (plaintiffs and defense) know each other, which may be hard to jump teams if you want to continue to do asbestos litigation. Fortunately (again, depending on the market), some firms are almost dedicated to asbestos litigation so you can still jump sides and practice in business/commercial litigation defense.

[Anonymous User]

OP here. Market is CA.

[bdubs]

OP here. I'm really targeting the larger market areas within my region. The thing is that I just happened to end up at a firm that does a significant amount of asbestos lit. It's not really the area I want to practice in, so that makes this potential conflict issue all the more annoying.

I assume your communication with these firms tries to make clear that you don't want to do mass tort work. My impression is that you might have a really hard time as a junior associate at a Plaintiffs side firm jumping to any almost any big defense side firm. Trying to make the P to D jump AND move practice areas seems even harder. You might be "auto-ding" just because of your background, not just the conflicts issue.

[Anonymous User]

OP here. I'm really targeting the larger market areas within my region. The thing is that I just happened to end up at a firm that does a significant amount of asbestos lit. It's not really the area I want to practice in, so that makes this potential conflict issue all the more annoying.

I assume your communication with these firms tries to make clear that you don't want to do mass tort work. My impression is that you might have a really hard time as a junior associate at a Plaintiffs side firm jumping to any almost any big defense side firm. Trying to make the P to D jump AND move practice areas seems even harder. You might be "auto-ding" just because of your background, not just the conflicts issue.

Would it be harder to be moving practice areas? I'd think that a direct jump from P to D in the same practice area would be harder, given that there are likely repeat defendants within that practice area? It's amazing because I never thought about the consequence of potential conflicts affecting my employability when I accepted the P side position.

[Anonymous User]

OP here. Market is CA.

I work in a mass toxic tort defense firm (mostly asbestos) in CA. If you are in SF or LA, I know its hard to jump ship from plaintiff's side to defense side, though its probably easier if you switch practice groups.