15.06.02. Removing conflict from lawyers changing firms: the screen [Rule 1.10(a)]

The Rule 1.9(b) exception makes sense. However, in 2009, the ABA adopted a very controversial new rule (1.10(a)(2)) that deals with this situation:  where a lawyer worked on a case at the old firm, and then goes to a new firm that has a client that is proceeding against a client of the old firm in the same or substantially related matter.  Prior to 2009, when the lawyer came to the new firm, the new firm would have to withdraw from representing the clients adverse to the new lawyer’s former clients.  You can see how this would limit the ability of lawyers to change firms (by limiting the willingness of law firms to hire them).  Rule 1.10(a)(2) now provides that in this situation the new firm would not have to withdraw from representation if:  (1)  the “disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee” from the case; (2) written notice is given to the lawyer’s former client with details about the screen; and (3) certifications of compliance with the screening requirement at the request of the former client.  In other words, while the lawyer would not be able to participate in the representation at the new firm, the lawyer’s disqualification would not be imputed to the new firm so long as a sufficient screen is put into place.

This rule is a tremendous shift in the conflict rules.  One of the reasons that we say that if one lawyer in the firm is disqualified all lawyers are disqualified (imputation of conflicts under Rule 1.10(a)), is because we presume that lawyers talk to each other and the incentives (especially financial) are to disclose information to assist the current firm.  The Rule 1.10(a)(2) exception provides that if a sufficient screen is put in place, this assumption can be overcome.  Here is how a Comment to Rule 1.9 defines the problem:  “If the concept of imputation were applied with unqualified rigor, the result would be radical curtailment of the opportunity of lawyers to move from one practice setting to another and of the opportunity of clients to change counsel.”[1] 

[1] ABA Rule 1.9, Comment [4].