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.
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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.
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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.
Wisconsin Lawyer
