Legal Ethics

ABA Stands Pat on Lateral Lawyer Rules

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Updated: By a single vote, the ABA’s 555-member policy-making House of Delegates decided this morning to postpone indefinitely consideration of an amendment to the Model Rules of Professional Conduct to allow a law firm to hire a lateral associate or partner who has a conflict of interest with a firm client and keep that client so long as the lateral attorney is not involved in that client’s representation and notifies his or her former client about the new relationship.

The vote was 192 in favor of postponing, 191 in favor of voting now.

The measure, which as subject to several last-minute amendments before it was tabled, is expected to be back on the House’s agenda when it meets at the ABA Midyear Meeting in Boston in February.

So-called “screening” rules already apply to former government lawyers, judges and law clerks who join law firms. The new amendment would have expanded screening to lawyers who move from one firm to another.

For the new rule to have affected practicing attorneys, disciplinary authorities in each of the states would have had to adopt it.

Similar measures have been rejected by the House, most recently in 2002 by a vote of 176 to 130. State disciplinary authorities are free to depart from the Model Rules, and 21 states already allow firms to “wall off” lateral lawyers so the firm can continue existing representations that present ethical conflicts for the new attorneys.

They are: Arizona, Colorado, Delaware, Illinois, Indiana, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Tennessee, Utah, Washington and Wisconsin.

Noticeably absent from that list are several major states, including New York, Florida and California. But New York is considering adopting a rule permitting screening so long as no confidential information acquired by the lawyer in the previous representation was “material” or “significant” to the current matter, according to the report for Resolution 114 (PDF).

Additional coverage:

National Law Journal: “Attempt to Relax Conflicts Rules Falls Short at ABA Annual Meeting”

Updated at 6 p.m., central time, on Aug. 13, 2008, to include National Law Journal coverage link.

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