By Thomas P. McGarry and Thomas P. Sukowicz
Hinshaw & Culbertson
Lawyers are generally prohibited by the Rules of Professional Conduct from representing clients whose interests are adverse to other current clients (see Rule 1.7) or are adverse to former clients if the matter is the same or substantially related to the matter in which the lawyer had represented the former client (see Rule 1.9).
Rule 1.10(a) imputes the conflicts of interest of one lawyer in a firm to the other lawyers in the firm, disqualifying the firm and all of its lawyers from representing a new client when there is a conflict under Rule 1.7 or Rule 1.9, although there is an exception when the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.
The principle of the imputation of conflicts of interest is applied to lawyers who move from one firm to another. Rule 1.10(b) provides that, when a lawyer leaves a law firm, the firm is allowed to represent a person with interests materially adverse to those of a client of the lawyer who left the firm unless:
1. the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
2. any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.
Of course, any disqualification required under Rule 1.10 may be waived by the affected client after full disclosure.
But what of the firm that the departing lawyer has joined?
When he joins a new firm, under Rule 1.10(e), all lawyers in that firm are disqualified from representing a client in any matter that would give rise to a former client conflict of interest under Rule 1.9. In other words, the receiving law firm cannot represent a client in any matter that is adverse to any former client of the new lawyer, which would include all clients of the lawyer's former firm.
There is an exception to this rule. The exception allows the receiving firm to represent former clients of the new lawyer if the new lawyer is timely screened from any participation in the matter and is apportioned no part of the fee generated from that matter.
The comments to Rule 1.10(e) reiterate that when the new lawyer is timely screened from any participation in the matter that would create a conflict of interest, the imputation of the conflict of interest is removed. Under those circumstances, consent of the affected clients is not required.
The screening of a lawyer who spoke with a prospective client may also protect a law firm from being disqualified from representing a client who is adverse to the prospective client that did not become a client. Under Rule 1.18(c), a lawyer who has had discussions with a prospective client is not permitted to represent a client with interests materially adverse to those of the prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter.
Once again, the exception to the rule permits the representation when the lawyer who received the information from the prospective client is screened from the matter and is apportioned no part of the fee derived from that matter.
Requirements for screening procedures are stated in Rule 1.0(k).
(k) "Screened" denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law.
The comments to Rule 1.0(k) explain that the purpose of screening is "to assure the affected parties that confidential information known by the personally disqualified lawyer remains protected."
The kinds of screening procedures that should be in place include:
1. The personally disqualified lawyer acknowledges (in writing) the obligation not to communicate with any of the other firm lawyers or employees with respect to the matter and not to have any contact with firm files or materials related to that matter.
2. The lawyers working on the matter should be informed that the screening is in place and that they may not communicate with the personally disqualified lawyer with respect to the matter.
3. Written notice and instructions to all other firm personnel forbidding any communication with the screened lawyer relating to the matter.
4. Periodic reminders of the screen to the screened lawyer and all other firm personnel.
Not all states allow lawyers to avoid disqualification by screening. Illinois attorneys who take advantage of this provision to avoid disqualification should keep in mind that, to be effective, screening measures must be implemented as soon as is practical after the law firm knows or reasonably should know that there is a need for screening. Screening procedures that are put in place too late may not prevent disqualification.