Ethics: Building Ethical Screens Up to Code

Won’t a screen fix that conflict?

It’s a question we ethics lawyers routinely get asked after we confirm to someone we’re advising that, yes, there is a conflict of interest.

The answer can vary a good bit among U.S. jurisdictions, especially as to whether screens can work for lawyers moving from one law firm to another. Getting an answer often requires studying the applicable local ethics rule and the applicable jurisdiction’s case law. But also, it’s necessary to determine who’s covered by screening rules, such as paralegals and summer associates. (For help with this research, see the resources mentioned below.)

This is a very important topic; it’s just not today’s topic.

Today we’ll explore how to effectively establish and police a screen, where permitted and appropriate under the ethics rules and case law.

They’re (almost) everywhere

Pretty much all lawyers know what screens are, at least generally. But many lawyers don’t realize the many ways in which they can (or must) be used. Screens are used:

• where lawyers move into and out of government legal positions, like prosecutors and county attorneys (ABA Model Rule of Professional Conduct 1.11);
• where lawyers move between private law firms, including corporate law departments (ABA Model Rule 1.10(a)(2));
• where law firms take on representations adverse to prospective clients of the firm—people who consulted a firm lawyer about hiring the firm, but who did not become clients (ABA Model Rule 1.18(d));
• where former judges or third-party neutrals in a firm are disqualified from participation in a matter being handled by the firm (ABA Model Rule 1.12(c));
• where, as a condition of waiving a conflict of interest, a client or former client wants to isolate lawyers who work or worked on their matter from those working on a matter creating the conflict (ABA Model Rules 1.7(b) and 1.9(a)).

Useful guidance from out west

In 2018, California finally joined the rest of the country in adopting ethics rules patterned upon the ABA Model Rules. (Ethics nerds rejoiced.) As part of this reform, California’s rules permitted screening to avoid disqualification for laterally moving lawyers for the first time.

Some may also recall that, a few years back, the California State Bar split into a state bar concerned only with lawyer regulation and the California Lawyers Association (CLA), their new voluntary bar. One benefit is that both now issue ethics opinions.

The very first topic addressed by the California Lawyers Association? “Elements of Effective Ethical Screens” in their Formal Op. 2021-1. It’s a nice 10-page primer on what makes an ethical screen compliant with their new rule.

California’s rules governing effective screens (California Rule 1.0.1(k) and its Comment [5]) vary slightly from ABA language (ABA Model Rule 1.0(k) and Comments [8]–[10]), but only because California includes language requiring that a screen protect against firm personnel other than the screened lawyer “communicating with the [screened] lawyer with respect to the matter.” Under any jurisdiction’s rules, good screens do this.

So, while there are some minor variations among the jurisdictions about the particular required bells and whistles required for an effective screen, the CLA’s first-ever ethics opinion is a nice introduction to the construction requirements.

What’s required?

Let’s look at the building code for required screens. (Of course, where screens are consensual, as an element of a conflict waiver, the requirements are a fit subject of negotiation.) As the California opinion notes, the precise facts of each situation matter enormously here, so pay close heed to them.

Timing

First, a screen must be timely.

As soon as the necessity of a screen arises, the screen needs to be built. When the need arises from a lawyer moving to a new firm, a screen should be in place promptly upon the lawyer joining their new firm. When the need arises from the firm accepting a new matter adverse to a prospective client whose matter the firm never accepted, a screen should be in place promptly upon the firm accepting the new matter adverse to the prospective client.

Life happens, and sometimes the need for screening only becomes apparent after the perfect moment to erect the screen. When that happens, quick action is still essential, plus confirmation that no communication that would have been barred actually happened, plus careful documentation of that fact, confirmed by the relevant actors. With luck, you can prove it—no harm, no foul.

But more than a few decided cases have found screens ineffective, and disqualified a law firm, where the court found the firm did not erect a screen as soon as reasonably possible following discovery of a conflict.

No Talking

Second, communications across the screen must be prohibited to firm or office personnel. This ban needs to be clearly communicated, acknowledged and documented.

The ban also needs to be real, and violations need to lead to real consequences. The best screens communicate this upfront, warning that violators will be punished. Of course, any actual violations need to be addressed appropriately.

Electronic Walls and Office Assignments

In the olden days, we spoke of making this prohibition more real by restricting access to paper files with special-colored paper (red might mean “Danger!”), locked file cabinets and locked offices or file rooms.

In today’s digital age, most firms can (and should) not merely communicate and acknowledge the prohibition orally and in writing but should also explore electronic means to actually make some such banned communications impossible. Check with your tech guru to see if you can either lock the new lawyer out of the parts of the firm’s case management or document management systems that concern the files from which they are screened or restrict access to those parts of the system to only an identified list of firm personnel. And check to make sure any system option to track and log who accesses the restricted files is fully enabled. As the California opinion says, a simple directive may be sufficient, but the more steps a firm has taken to prevent any disclosure, the more likely the ethical screen is to be found adequate.

Constructing an effective screen might well also affect personnel assignments and office logistics. If lawyers on opposite sides of the screen share a paralegal or associate, perhaps that should be adjusted. And perhaps firm personnel on opposite sides of the screen should not have offices next door to each other or share printers. Details matter.

No Fees

Third, a screened person cannot share fees arising from the screened matter. The point is to remove any financial incentive for the screened lawyer to assist.

Screened personnel cannot receive compensation directly related to the matter from which they are screened. Bonuses based on the overall profitability of the firm are fine.

Say Something

California’s new rule on lateral-lawyer screens requires notice to affected clients.

Notice requirements vary among jurisdictions, but the usual purpose is to provide affected clients sufficient information to evaluate the effectiveness of the screen. Depending on the purpose of the screen and applicable rules and law, the form and content may vary. Check the applicable rules and comply.

Further, where notice is required, those receiving notice do sometimes have questions. Depending on the situation, the firm sending notice may well have an obligation to respond to reasonable questions from those receiving notice.

Screening by Consent

Many lawyers and lawyer regulators have no idea how much of the realm of conflicts of interest is regulated by the negotiated consent of lawyers and clients. A large part of this regulation is accomplished by waivers of conflicts that often include elements of screening.

In most circumstances, the legal requirements for an adequate screen under the ethics rules provide the best guidance on what is required for an effective consensual screen. However, lawyers and clients have flexibility to require more, or less, protection than the ethics rules in their consensual screen.

Prudent lawyers take great care in either adding to or subtracting from rule requirements. They also document very clearly their agreement.

So, when the time comes, be sure to build your ethical screening to code.

Screening Resources

• California Lawyers Association, Ethics Committee Formal Opinion 2021-1 (Feb. 11, 2021)
• William Freivogel, Freivogel on Conflicts, Changing Firms—Screening
  
• ABA Center for Professional Responsibility Policy Implementation Committee, Variations of the ABA Model Rules of Professional Conduct, Rule 1.0: Terminology (updated Jan, 2, 2020)
• ABA Center for Professional Responsibility Policy Implementation Committee, Variations of the ABA Model Rules of Professional Conduct, Rule 1.10 Imputation of Conflicts of Interest: General Rule (updated Jan. 2, 2020)
• ABA Center for Professional Responsibility Policy Implementation Committee, State Adoption of Lateral Screening Rule (updated Dec. 8, 2015)