State rules of professional conduct and related authorities contain considerable guidance on when an ethics screen may prevent a conflict of interest from imputing or spreading from one person at a firm to taint everyone else at the firm with a conflict. Such authority on how to set an effective screen, however, is often surprisingly sparse. Moreover, state ethics rules are often inconsistent on what elements are required for a screen to be effective.
This article seeks to remedy this shortcoming by providing a clear account of what elements should be included for an ethics screen to be effective. It begins with an examination of what elements specific ethics rules require. This article then draws upon precedent to further establish and explain the components of an effective screen, and offers guidance on what components a law firm should consider employing to avoid imputation of an otherwise disqualifying conflict of interest.
Ethics Screens in the ABA Model Rules
The American Bar Association (‘‘ABA’’) Model Rules of Professional Conduct identify five circumstances when, without client consent, a law firm may use an ethics screen to prevent imputation of an otherwise disqualifying conflict of interest from one or more lawyers or nonlawyers who have the conflict to the rest of the law firm.
The five circumstances specified in four ABA Model Rules—Model Rules 1.10, 1.11, 1.12 and 1.18—are:
when the conflict arises from prior work performed by a nonlawyer, Rule 1.10 cmt. ;
when the conflict arises from prior work by a lawyer who was a government lawyer when the work was performed, Rule 1.11;
when the conflict arises from prior involvement as a judge or other neutral, Rule 1.12;
when the conflict arises from communications with a prospective but declined client, Rule 1.18; and
when the conflict arises from work that a lawyer did when at a prior firm, Rule 1.10.
No state has adopted all five of these Model Rules verbatim. In fact, no state’s version of Model Rule 1.10 mirrors the Model Rule on private firm lateral attorney ethics screens. Yet a closer look at these four Model Rules, as well as the definition of ethics screens in Model Rule 1.10, reveals two points.