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    Ethics: Screen Transferring Lawyers for Conflicts

    A new proposed Rule of Professional Conduct for Attorneys may help to avoid conflicts of interest when lawyers transfer between law firms. The rule permits a new firm to "screen" a lawyer transferring from another firm from any contact with members of the new firm who are involved with litigation pending between the two firms.
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    Wisconsin LawyerWisconsin Lawyer
    Vol. 79, No. 8, August 2006

    Screen Transferring Lawyers for Conflicts

    A new proposed Rule of Professional Conduct for Attorneys may help to avoid conflicts of interest when lawyers transfer between law firms. The rule permits a new firm to "screen" a lawyer transferring from another firm from any contact with members of the new firm who are involved with litigation pending between the two firms.

    by Dean R. Dietrich

    The Wisconsin Supreme Court is considering final changes to Chapter 20, the Rules of Professional Conduct for Wisconsin Lawyers. The first draft of the proposed rules includes changes that involve the screening of a lawyer who transfers from one law firm to another law firm if both of the law firms are involved in litigation against each other on behalf of clients. This notion of "screening" a lawyer who transfers from one law firm to another law firm is found in proposed SCR 20:1.10 and is a new concept in Wisconsin.

    Dean DietrichDean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is chair of the State Bar Professional Ethics Committee.

    The Proposed Rule

    The new rule proposed in SCR 20:1.10 is:

    "(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9 unless:

    ...

    (2) the prohibition arises under Rule 1.9 and

    (i) the personally disqualified lawyer performed no more than minor and isolated services in the disqualifying representation and did so only at a firm with which the lawyer is no longer associated;

    (ii) the personally disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

    (iii) written notice is promptly given to any affected former client to enable the affected client to ascertain compliance with the provisions of this Rule."

    The Concept Behind the Rule

    The rationale behind the rule change is to allow certain lawyers who are in one law firm to transfer to the other law firm without the other law firm being required to remove itself from the litigation on behalf of its client. The concept behind the rule change is that the transferring lawyer may become employed by the new law firm if notice is given to the old law firm (and its client) of the transfer and of the commitment by the new firm to "screen" the lawyer from any contact with members of the new firm related to the pending litigation. Under the concept of screening, the transferring lawyer may not have any discussions with members of the new law firm about the pending litigation and must be removed from any access to information or files related to the pending litigation.

    An important aspect of the screening rule is that it only applies to certain lawyers who may transfer from one law firm to another law firm. A lawyer who has primary responsibility for litigation in the old law firm that has a conflict with the new law firm may not transfer to the new law firm and expect the screening rule to apply. The screening process may only be used for lawyers who have had minimal contact with the litigation that creates the conflict of interest for the lawyer transferring to the new law firm. Whether or not a screening process can be used for a particular lawyer transferring to a new law firm will depend on the facts of the litigation and the involvement of that lawyer in the litigation when employed by the original law firm.

    While the screening rule in SCR 20:1.10, as proposed, is subject to varying interpretations, it provides an opportunity for attorneys to transfer among law firms in an environment where lawyers have a tendency to move from one law firm to another. Protections remain for the clients because this screening provision only applies to limited circumstances in which the lawyer seeking employment with a new law firm has not been intimately involved in the litigation on behalf of the client in the original law firm. Clients also are protected because notice of the screening arrangement established by the new law firm must be given to the original law firm and the client. This affords the original law firm and its client the opportunity to challenge the continued representation by the new law firm through a motion to disqualify that law firm.

    The Wisconsin Supreme Court will be giving final consideration to proposed Rule changes in September. It is anticipated that the court will issue a final draft of the changes to Chapter 20 in September or October with an effective date of either Jan. 1, 2007, or July 1, 2007. To obtain more information about and to read the full draft of the proposed Rule changes, please visit www.wisbar.org/ethics2000.




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