Comments of Robert A. Creamer Concerning Draft Model Rule 1.10 - Center for Professional Responsibility

American Bar Association
Commission on Evaluation of the Rules of Professional Conduct

Comments of Robert A. Creamer
Concerning Draft Model Rule 1.10
July 6, 2000

My name is Robert Creamer. My employer and some other affiliations are listed at the end of this statement. I have identified these affiliations only to give you my background. The views that I will express may or may not reflect those of others. For purposes of today's discussion, the most relevant part of my background is that from 1967 to 1993, I was affiliated with a Chicago-based law firm that grew from 100 to 350 lawyers in about ten years. When I left, we had offices in New York City, Washington D.C., Houston, Los Angeles, San Francisco, and Peoria.

The purpose of my appearance here today is to ask the Commission once again to amend Model Rule 1.10 to permit screening. By screening, I mean a procedure like that permitted by the current Rules of Professional Conduct of Illinois, Kentucky, Maryland, Michigan, Oregon, Pennsylvania and Washington to avoid the imputed disqualification of a law firm in situations arising out of the lateral movement of private lawyers among law firms. For the reasons listed in my testimony of August 5, 1999, I continue to believe that the Commission's present position on screening is both ill-advised and unfair to the majority of practicing lawyers.

Today I wish to focus on a single point, namely: that an appropriate screening regime will adequately protect the legitimate interests and expectations of the clients of the lateral lawyer's prior firm. From its deliberations to date, it is clear that the Commission believes that screening can be effective.

In fact, the Commission has chosen to retain the two screening provisions of current Model Rules, Model Rule 1.11 (former government lawyers) and Model Rule 1.12 (former judges). It has proposed two new rules that allow unconsented screening, Rule 1.18 (lawyers who interview prospective clients) and Rule 6.5 (lawyers who perform "short-term limited" legal services). In addition, proposed new Comment [7] to revised Model Rule 1.10 recognizes the legitimacy of unconsented screening in two other situations: (1) lateral non-lawyers, such as paralegals or secretaries; and (2) former student law clerks.

Overall, the Commission has approved unconsented screening in at least six situations:

  • former government lawyers;
  • former judges or arbitrators (and their clerks);
  • lawyers who interviewed prospective clients;
  • lawyers who rendered limited services;
  • lateral paralegals and secretaries; and
  • former student law clerks.

Thus, the efficacy of screening to protect the interests of former clients and the public has been acknowledged by the Commission.

Because screening has been found sufficient to protect former clients and the public in these disparate settings, there is simply no reason to believe that it will not work as well in the lateral lawyer situation. Lawyers and law firms will be no less trustworthy in administering screening schemes for lateral private lawyers than they will in those involving the lawyers and non-lawyers who already qualify for unconsented screening.

If the Commission is concerned about lack of notice to former clients, it could consult current Washington State Rule 1.10(b) [copy attached]. That rule requires notice to the former firm and former clients, and it gives former clients standing to seek a judicial determination of the effectiveness of the screening measures employed. This type of procedure would afford further protection to the legitimate concerns of former clients.

I have appreciated the opportunity to express my views here today. I would be happy to answer any questions the Commission may have.

* * *

My employer is Attorneys' Liability Assurance Society, Inc., A Risk Retention Group, a mutual insurance organization that provides professional liability insurance coverage for large law firms. I am a member of the Association of Professional Responsibility Lawyers, the Maritime Law Association, The American Law Institute, the American Bar Association, the Chicago Bar Association, and the Illinois State Bar Association. I have served on the Standing Committee on Professional Conduct of the Illinois State Bar Association from 1983 to date. I was chair of that committee in 1989 and 1998. I also serve as chair of the Board of Ethics of the City of Evanston, Illinois.

Washington State Rule 1.10

IMPUTED DISQUALIFICATION; GENERAL RULE

(b) When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer ("the personally disqualified lawyer"), or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired confidences or secrets protected by rule 1.6 and 1.9(b) that are material to the matter; provided that the prohibition on the firm shall not apply if:

(1) The personally disqualified lawyer is screened by effective means from participation in the matter and is apportioned no part of the fee therefrom;

(2) The former client of the personally disqualified lawyer receives notice of the conflict and the screening mechanism used to prohibit dissemination of confidential or secret information;

(3) The firm is able to demonstrate by convincing evidence that no confidences or secrets that are material were transmitted by the personally disqualified lawyer before implementation of the screening mechanism and notice to the former client.

Any presumption that confidences or secrets of the former client have been or will be transmitted may be rebutted if the personally disqualified lawyer serves on his or her former law firm and former client an affidavit attesting that the personally disqualified lawyer will not participate in the matter and will not discuss the matter or the representation with any other lawyer or employee of his or her current law firm, and attesting that during the period of the lawyer's personal disqualification those lawyers or employees who do participate in the matter will be apprised that the personally disqualified lawyer is screened from participating in or discussing the matter. Such affidavit shall describe the procedures being used effectively to screen the personally disqualified lawyer. Upon request of the former client, such affidavit shall be updated periodically to show actual compliance with the screening procedures. The law firm, the personally disqualified lawyer, or the former client may seek judicial review in a court of general jurisdiction of the screening mechanism used, or may seek court supervision to ensure that implementation of the screening procedures has occurred and that effective actual compliance has been achieved.

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