Vol. 82, No. 2, February 2009
I read about the controversy at the ABA Annual Meeting on screening of lawyers transferring from one law firm to another law firm to avoid a conflict of interest. Is screening of a transferring lawyer allowed in Wisconsin?
The debate at the ABA Annual Meeting in August 2008 centered around possible amendments to Model Rule 1.10, which involves imputed conflicts of interest. The debate about amendments to the Model Rule is not directly applicable to Wisconsin lawyers because Wisconsin already has adopted a screening rule that applies when a lawyer is transferring from one law firm to another law firm and the two law firms represent opposing sides in a litigation matter.
SCR 20:1.10(a)(2) addresses this issue in Wisconsin. The rule provides as follows:
(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 SCR 20:1.7 or SCR 20:1.9 unless:
(2) the prohibition arises under SCR 20:1.9, 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.
Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is chair of the State Bar Professional Ethics Committee.
Under this rule, if a lawyer in one law firm transfers to another law firm in a situation in which the two law firms are on opposing sides of litigation, the new law firm will not be disqualified from continuing its representation if certain steps are taken to screen the transferring lawyer, and the transferring lawyer was not a principal litigant for the client represented by the original law firm.
The essence of the rule is that the law firm to which the lawyer is transferring will not be disqualified from continuing to represent its client if the lawyer is screened from any participation in the representation of that client and proper notice is given to the affected former client that is represented by the law firm from which the transferring lawyer is departing. All of this is allowed only if the transferring lawyer only performed “minor and isolated services in the disqualifying representation” of the former client and “did so only at the firm with which the lawyer is no longer associated.” Simply stated, the transferring lawyer must not be the principal attorney representing the client in the former law firm and may only have had minimal or limited contact with the litigation on behalf of the client represented by the law firm that the lawyer is leaving.
The amendments being considered to the Model Rule are similar to provisions in SCR 20:1.10. Many lawyers oppose the concept of screening because of the importance of loyalty owed to the client and the requirement that the loyalty apply to all lawyers in the law firm that represents the client. It is obvious that the debate will continue on the notion of screening under the Model Rules of Professional Conduct even though this practice is allowed under the Wisconsin Rules of Professional Conduct. This of course means that Wisconsin lawyers can transfer from one law firm to another law firm and use the screening process to avoid the disqualification of the law firm to which the lawyer is transferring, provided all the requirements of SCR 20:1.10(a)(2) are satisfied.