In February 2009, the ABA House of Delegates passed an amendment to Model Rule 1.10 that allows screening of lateral lawyers without former client consent. Screens are not new, but as they become more common, they raise issues that the courts have been considering for some time, including what screens are, when they should be available, and what criteria are sufficient to establish an effective screening mechanism.
What is a “screen”?
A “screen” has been variously referred to by courts as a “cone of silence” (remember Get Smart?) a “Chinese Wall,” a “firewall,” a “wall,” and a “screen.” Model Rule 1.0(k) defines “screened” as “the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law.”
When is screening allowed?
In all jurisdictions, Rule 1.9 allows a lawyer to be screened with the consent of the relevant client(s). Twenty-seven jurisdictions limit screening to this situation. The amended ABA Rule follows thirteen jurisdictions that allow screening of a lateral lawyer without former client consent
Future issues that firms and courts will confront
• Disqualification: The amended Rule’s comments make clear that it addresses only discipline, not disqualification, for which a court is free to determine its own standards.
• Consent: Even if not required by a rule, continuing to seek consent can prevent a disqualification motion. Firms should also seek consent from current clients whenever a disqualification motion is foreseeable. Otherwise, who will pay to defend it?
• Screening criteria: Both professional rules and the courts have developed a long list of criteria, each a circumstantial guarantee of trustworthiness, required to establish an adequate screen.
- Written notice to the former client and the court, including a description of the screening procedures, the fact that court review may be available, and an agreement to respond to inquiries from affected client(s).
- Effective mechanisms require a prohibition on the discussion of sensitive matters, restricted access to files and documents, a strong firm policy against breach, including sanctions, physical and/or geographical separation of the screened lawyer, and a prohibition against fee sharing in the matter.
- Screening effectiveness is a function of the substantiality of the relationship between the lateral’s involvement in matter, the time lapse between the matters in dispute, firm size, structural divisions, and the timing of the wall. Timing requires a screen to be established as soon as the firm reasonably should have recognized the conflict (ideally, before the lateral’s first day of work).
• Choice of law: Model Rule 8.5 applies the law of a tribunal, but outside of court, the predominant effect of the lawyer’s conduct should be considered. But the rules do not explain the effect on whom. Absent clarification, lawyers should carefully consider the effect on the current client, the former client, and other interested parties in determining which jurisdiction’s law will apply.
• Conflicts checks: Lawyers and firms must perform conflicts checks, subject to the rigors of Rule 1.6. Be especially careful of sharing any information that the former client might consider sensitive. Consider hiring an independent lawyer to search for conflicts if you are not able to obtain or share all information.
• Conflicts recognition: If screens become more readily available without consent will lawyers and firms “recognize” them more readily?
Two cases provide a look at these factors in action. In Intelli-Check, Inc. v. Tricom Card Technologies, 2008 U.S. Dist. Lexis 84435 (E.D.N.Y), the court upheld a screening mechanism despite a professional rule to the contrary. By contrast, in Norfolk Southern Railway Co. v. Reading Blue Mountain & Northern Co., 397 F. Supp. 2d 551 (M.D. Pa. 2005), the court held that a screen was ineffective, despite a professional rule that appeared to allow it.
To sum up, courts do not accept the word of a lawyer that she cannot remember or has not leaked confidential information about a former client. Laterals must be screened, with mechanisms that paint a picture of trustworthiness sufficient to be seen. Proper screening mechanisms should employ enough procedures that current clients, former clients, and the court will all feel confident that sensitive and confidential information are protected
Susan R. Martyn is a Stoepler Professor of Law and Values at The University of Toledo College of Law in Ohio. She can be contacted at email@example.com.