Ethics

Follow the Middle Road


Illustration by Michael Morgenstern

But things don’t always work out quite that way.

Three times this decade, the ABA’s policymaking House of Delegates entertained proposals to amend Model Rule 1.10 (PDF) on imputed conflicts of interest by allowing a lawyer joining a new firm to be “screened” from any cases in which the lawyer represented adverse parties while at the former firm. In 2002, the House defeated a screening proposal made by the Ethics 2000 Commission as part of its comprehensive review of the Model Rules. In 2008, the House decided by a single vote to postpone consideration of a similar recommendation by the Standing Committee on Ethics and Professional Responsibility.

By February, however, when the House took up the issue yet again, 24 states already had adopted some form of screening rule.

This time, the House approved a revised proposal by the ethics committee to permit screening under Model Rule 1.10, despite continuing opposition from many del­egates who argued that screening could undermine protections against conflict of interest. The final vote was 226-191.

Despite that opposition, there was a strong feeling that the ABA no longer could avoid the reality that lawyers change firms in greater numbers than ever before. As ABA President-elect Carolyn B. Lamm of Washing­ton, D.C., told the House, “The ABA must return to its leadership role in ethics by putting forward a balanced screening rule for the states to adopt.”

The spotlight now moves to the remaining 26 states that have not adopted screening. As they fix their attention on the mechanics of the ABA’s revised Model Rule 1.10, they will discover a compromise between the various state rules that already permit screening: stricter than some, more lenient than others.

The threshold issue is: Which lawyers should be screened?

Half of the state rules that permit screening allow it only if the lawyer had no substantial information from, or played no substantial role in, matters that raise potential conflicts. As revised, Model Rule 1.10 has no such limitation. Even if a lawyer was directly involved in a case at the former firm, the lawyer may be screened from the case at the new firm without imputing his conflict to the entire firm. An absence of disciplinary complaints in states that follow the more liberal rule, and the rarity of legal challenges to screening procedures, demonstrate that lawyers do respect the sanctity of the obligations of confidentiality and loyalty to former clients.

TOUGH DISCLOSURE RULES

Rigorous disclosure requirements were added to Model Rule 1.10 that go well beyond any existing state rules.

A screen may be created only after the disqualified lawyer and his firm assert to a former client that no confidential information has been communicated. They must describe the screening procedure, advise the former client that review of the procedure may be available from a tribunal, and agree to respond promptly to any written questions about or objections to the screening procedure. Although most state screening rules contain some of these requirements, none contains them all.

The rule also requires periodic certification by the disqualified lawyer and his firm that the screening procedure has been adhered to through completion of any case. Twenty-one of the states that permit screening have no such requirement, while three states (Massa­chusetts, Oregon and Washington) require that an af­fidavit to the same effect be executed.

Screening rules adopted so far by nearly half the states appear to have worked well enough. Now the hope is that the states will agree that revised ABA Model Rule 1.10 will work even better.

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