MATERIALS ON HOUSE REPORT 109
ABA Standing Committee on Ethics and Professional Responsibility
At its 2009 Midyear Meeting, the ABA House of Delegates adopted Report 109 from the Standing Committee on Ethics and Professional Responsibility that amends Model Rules of Professional Conduct 1.10 (“Imputation of Conflicts of Interest: General Rule”) and 1.0 ("Terminology") to permit the screening of a lawyer who moves laterally from one private law firm to another, so that conflicts of interest that apply to the moving lawyer under Model Rule 1.9 (“Duties to Former Clients”) are not imputed to all the other lawyers in the new law firm. During the August, 2009 ABA Annual Meeting, the House of Delegates adopted a housekeeping amendment to amend Model Rule of Professional Conduct 1.10 (“Imputation of Conflicts” General Rule”)
These materials describe the proposal:
- Report and Recommendation 109 housekeeping amendment (August, 2009)
- Final Report 109 - adopted as revised
- Read related ABA Journal article
- Report 109 of the ABA Standing Committee
- Outline Summary of Report 109
- Alternative Report 110 offered by the ABA Section of Litigation
- Report of ABA House of Delegates Committee on Rules and Calendar on Consideration of Reports 109 and 110
These materials provide additional background and state various reasons supporting approval of Report 109:
- Chart on Lateral Lawyer Screening Status. This state-by-state chart shows whether a state has adopted a lateral screening rule and whether the rule permits full screening as proposed by House Report 109 (12 states with “Yes” in the third column) or limits the lawyers who may be screened (12 states with “Limited” in the third column).
- Statement of Susan Hackett, Senior Vice President and General Counsel of the Association of Corporate Counsel (ACC) Concerning House Report 109, February 2009. This statement by the ACC, the voice of the in-house bar with over 25,500 members employed by more than 10,000 private sector entities, endorses House Report 109 as carefully tailored to balance the rights of its members as clients and the interests of lawyers who wish or need to change firms.
- "The Proposed Amendment to Model Rule 1.10 Is Balanced and Important; The Arguments of the Opponents are Stale and Hollow," by E. Norman Veasey. This article by the Chair of the ABA Ethics 2000 Commission and former Chief Justice of the Delaware Supreme Court, explains how the rule proposed by House Report 109 is an improvement over the screening rule recommended by the Ethics 2000 Commission that did not pass in 2002; and Justice Veasey also carefully refutes each of the arguments of the opponents to House Report 109.
- Letter from Geoffrey C. Hazard, Jr., Distinguished Professor of Law, Hastings College of the Law. In this letter, Professor Hazard, Reporter for the Kutak Commission that drafted the Model Rules of Professional Conduct in 1983, member of the Ethics 2000 Commission, and co-author of The Law of Lawyering, the definitive treatise on legal ethics, expresses that “I strongly support” the amendment to Model Rule 1.10 proposed by House Report 109 in view of the rapid change in practice contours in the last half-century and notes that the proposed amendment has “abundant safeguards” for former clients.
- “Some Thoughts on House Report 109,” by Professor Thomas D. Morgan, George Washington University Law School. Professor Morgan, co-author of the most widely-used law school text on professional responsibility and a Reporter for the ALI Restatement Third, The Law Governing Lawyers, formerly opposed lateral screening; but Professor Morgan now observes that the law firm world has changed radically since 1969 (introduction of the Model Code of Professional Responsibility) and since 1969 the ABA House of Delegates has regularly and appropriately changed the ABA model ethics standards to keep up with new realities, and concludes that approval of House Report 109 would “clearly be appropriate and desirable.”
- Statement of the Association of Professional Responsibility Lawyers (APRL) supporting House Report 109. APRL, an independent national organization of lawyers concentrating in legal ethics and professional responsibility, agrees with the Standing Committee that it is no longer tenable to make a sharp distinction between former government lawyers, who may be screened under Model Rule 1.11, and lawyers leaving private firms, who may not.
- Report of New York County Lawyers Association supporting House Report 109. This thorough report reviews the background and history of House Report 109, explains the rationale for supporting the proposal, observes that screening is well established as a method of protecting clients and former clients, and concludes that the increased mobility of lawyers makes “traditional application of the imputation of conflicts of the laterally moving lawyer to the firm to which the lawyer moves a trap for the unwary, a burden on clients and an unnecessary attraction to opponents to make motions to disqualify.”
- “Screening and Specter of Harm to Clients,” by Mary T. Robinson, former Administrator of the Attorney Registration and Disciplinary Commission of the Illinois Supreme Court. The former chief disciplinary officer of a state that has permitted lateral screening since 1990 reports that not one of the 93,000 complaints against lawyers filed during her fifteen-year tenure involved an alleged breach of a conflicts screen.
- “Screening: Not Just a Big Firm Issue,” by George R. Ripplinger. A Past Chair of the General Practice, Solo and Small Firm Division explains how the changes proposed by House Report 109 will benefit lawyers in small firms.
- “It’s Time for the ABA to Have a Screening Rule,” by Max Bahner. The Chair-Elect of the Senior Lawyers Division argues that the proposed rule will protect clients and that the ABA should return to its traditional role as a leader in the development of ethics rules.
- “Lateral Screening after Ethics 2000,” by Robert A Creamer, January 2009 revision of article from 2006 Professional Lawyer. This article by a retired Vice President - Loss Prevention Counsel of ALAS, a leading lawyers’ professional liability insurer, reviews and refutes the three most often repeated arguments against lateral screening.