Screening Door Held Ajar
Modification of Model Rules is tabled—for now
Posted Sep 1, 2008 8:20 AM CDT
By James Podgers
Going into the 2008 ABA Annual Meeting in New York City, the hottest item for the association’s policy-making House of Delegates was expected to be the approval of “screening” as a way for law firms to avoid client conflicts.
And, by a single vote, the House passed a motion to postpone indefinitely debate on the measure. The final tally was 192-191.
The recommendation would amend Rule 1.10 of the ABA Model Rules of Professional Conduct to permit screening, so that one lawyer’s conflict of interest would not require the entire firm to be disqualified from a case, as under the current rule.
The recommendation by the Standing Committee on Ethics and Professional Responsibility was essentially the same as one made by the Ethics 2000 Commission that was rejected by the House in 2002.
The ethics committee brought the proposed amendment back to the House this year, arguing that the screening concept is becoming more widely accepted.
Committee chair Steven C. Krane, a partner at Proskauer Rose in New York City, told the House that some variation of its proposed screening rule has been adopted by nearly half the states.
BACK TO THE BATTLE
Lawrence J. Fox, a partner at Drinker Biddle & Reath in Philadelphia who led the 2002 fight against the screening amendment, also made the motion in New York to postpone consideration of the issue. He argued that delegates had not had time to review a series of proposed amendments that were expected to be made on the floor.
“This is no way, ladies and gentlemen, for us to amend the Model Rules,” Fox said. “I couldn’t even meet with my happy warriors who want to oppose the proposal because they didn’t have time to look at the proposed amendments.”
The vote at the August session does not block a recommendation from being resubmitted to the House of Delegates. And both sides expect the issue to be revived when the House reconvenes in February in Boston, where it may consider a compromise.
“My sense,” Krane said, “was that there was a great deal of support for the [screening] concept, but people weren’t comfortable with the process for submitting amendments.”
Fox said he probably could support a more limited screening provision, but “this proposal was too far-reaching for me.”