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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.
This article is not a formal opinion of the Professional Ethics Committee and is not to
be relied upon as having been approved by the Professional Ethics
Committee. Attorneys with questions or professional ethics issues
may contact the Ethics Hotline at (800) 444-9404, ext. 6168;
or (608) 250-6168 (all day Wednesday); and (608) 629-5721 on
Monday, Tuesday, Thursday, and Friday mornings.
Send written requests for Professional Ethics
Committee opinions to the committee c/o Keith Kaap, State Bar
of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.
Professional Ethics Committee opinions may
be found online. |
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.
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