Ethics

The recent California Court of Appeal ruling in Kirk, permitting unilateral screens over the objections of adverse parties in certain scenarios, raises hot button issues.

When we decide that all former client and former non-client consultator (is that a word?) disqualifications are imputed to everyone at the lateral?s new place of employment, we are enforcing an expensive rule.  It?s expensive to the existing clients at the new place of employment, to the lawyer seeking to move laterally, and to the prospective clients at the new place of employments. 

The conventional wisdom is that the cost is well worth paying.  Former clients shouldn?t have to worry that the lawyers with whom they shared confidences will remain true to their duties of confidentiality. I get that.  In that vein, we're spending money on the common perception of the profession itself.

And yet we have permitted many exceptions. When a judge moves laterally, she can be unilaterally screened.  Same with government lawyers.  So, too, with secretaries, summer associates, and paralegals who move laterally.  And, as of last August, the former client conflicts that adhere to any lateral moves by private practice lawyers can be cabined, with the use of a unilateral screen, to just to the lateral attorney and not be imputed to all attorneys at the new place of employment?at least under the ABA Model Rules approach.

Last year, in the In re Charlisse C case, the California Supreme Court extended the use of unilateral screens to former client conflicts in the underfunded sectors of the legal profession, where direct services lawyers labor to provide legal services to people who cannot afford private practice lawyers.

What do you think?  When should unilateral screens suffice, despite the lateral lawyer?s knowledge, or potential knowledge, of some confidence related to the former client or the former consulting party?  (Assume that for a screen to work, it would require written disclosure to the former client and written confirmation that the screen has been honored.)

Here are some scenarios. I'd be interested in your views.  I'd be particularly interested in your views about the costs involved, who should pay them, and why.

1. It?s a government lawyer moving laterally.
2. It?s a neutral moving laterally.
3. It was a non-lawyer, such as secretary, admin, summer associate, or paralegal.
4. When it?s a lawyer who received the confidences under an MR 1.18 initial consultation.
5. If the lawyer didn?t work on the matter at the other firm but did learn confidences in the hallway (1.9(b)-type situations).
6. If the lawyer actually did work on the matter at the prior firm. (the ?new? 1.10(a)).
7. If only one lawyer has been DQ?d from a matter, such as, for example, when a lawyer violates the no-contact rule and the judge lets the rest of the lawyers at that firm stay on the job.