Vol. 73, No. 3, March 2000

Ethics

Screening New Lawyer-Employees
for Conflicts of Interest

If used correctly, the screening process may allow other members of a law firm to represent a client even if a new lawyer-employee's former firm represented a different client in the same litigation matter.

By Dean R. Dietrich

Our law firm recently hired a new associate from another firm that was representing a party that we sued on behalf of one of our clients. Someone suggested that this new associate should be screened from this litigation. What does that mean?

Answer

Screening is the process whereby an attorney is deliberately excluded from any discussions or any review of documents relating to a particular client or litigation matter. A screening process often is used in instances where an attorney transfers from one law firm to another law firm when the law firms are involved on opposite sides in a litigation matter. Law firms use the screening process to ensure that a newly hired associate does not disclose any information he or she may have acquired while working for another law firm that would result in the new law firm being disqualified from representing its client in the pending litigation. Screening can be used only when the lawyer joining the new law firm was not directly involved in the representation of the client in the other law firm and, therefore, does not have an irreconcilable conflict of interest or does not have material knowledge about the case from the prior representation.

The primary reason for using the screening process is the ramifications of SCR 20:1.10. This Supreme Court Rule provides that a conflict of interest that applies to one attorney in a law firm will be imputed to all other attorneys in the law firm. Thus, if one attorney in the law firm cannot represent a client due to a conflict of interest with another client under SCR 20:1.7, 1.8 or 1.9, other members of the law firm may not represent the client either. The screening process, if used correctly, may allow the representation of a client by other members of the law firm, although its usage generally is limited to instances where an attorney has prior representation of a client and transfers to a new law firm that is representing a different client in the same litigation matter.

Some states, such as Illinois, have a specific provision in their Rules of Professional Conduct which reads as follows:

(e) For purposes of Rule 1.10, Rule 1.11, and Rule 1.12, a lawyer in a firm will be deemed to have been screened from any participation in a matter if:

(1)the lawyer has been isolated from confidences, secrets, and material knowledge concerning the matter;

(2)the lawyer has been isolated from all contact with the client or any agent, officer, or employee of the client and any witness for or against the client;

(3)the lawyer and the firm have been precluded from discussing the matter with each other; and

(4)the firm has taken affirmative steps to accomplish the foregoing.

Dean R. Dietrich, Marquette 1977, of the Wausau firm of Ruder, Ware & Michler L.L.S.C., is a member of the State Bar Professional Ethics Committee.

The law firm should take specific steps to ensure that the screening process is effective. All lawyers involved in the litigation matter should be advised in writing that they are not to discuss the case in any fashion with the new lawyer. The new lawyer also should be advised in writing of his or her absolute need to avoid any contact or discussions about the litigation matter. If necessary, a lawyer in the law firm who is not involved in the litigation, should interview the new lawyer to determine what, if any, information the new lawyer may have about the pending litigation in order to ensure that there is no inherent conflict imputed to the new law firm based on the knowledge acquired by the new lawyer while employed by the former law firm. If the new law firm has imputed information about the trial strategies and legal research conducted on behalf of the client in the former law firm, the appearance of a conflict of interest may become so strong as to support a motion to disqualify the new law firm from continuing to represent its client in the litigation.

The Wisconsin Rules of Professional Conduct do not expressly recognize the use of a screening process to avoid conflicts of interest. This does not mean that a screening process cannot be used by Wisconsin lawyers. It simply means that lawyers should be cautious when using the screening process to avoid a conflict of interest when a new attorney comes to a law firm. Communication with the client and possibly obtaining written waivers of any conflict are critical to making the screening process work.