California Bar Journal
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When it comes to shielding: Holy screen!
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Diane KarpmanInitially, the opinion in Hoglund v. U.S. Dist. Court (Real Party, Forsyth) (C.D. Calif., April 19, 2000) 2000 U.S. App. LEXIS 22244, seems exciting and provocative because of the dearth of California decisions in which any court actually discusses the undeniable need for ethical screens.

In Forsyth, the law firm of a former magistrate, who had mediated in an earlier related case, was not disqualified from the later case, due to the timely erection of an ethical screen to shield the rest of the firm from confidential information he was presumed to have. Economic forces mandate a change in our ability to protect recent admittees and mobile baby boomers, and the merging law firms and corporations they become involved with, from the imputed taint of a former client’s secrets.

However, in spite of the juicy dicta discussing attorneys in general, the holding boils down to confirming the use of ethical walls solely for former judicial officers and governmental lawyers, and not all attorneys. This restricted approach is profoundly disturbing.

Permitting screening to protect the confidences of former clients of governmental lawyers only is discriminatory and segregates the profession. Contrast the global applicability of Rule 2-400, which prohibits all lawyers from unlawful discrimination in their law practices on the basis of race, sex, religion, etc., with their employees or in client selection.  Legitimation of screens for former governmental employees only implies they are more ethical than other lawyers.

That idea is silly, since we are all cut from the same cloth, and especially since California hallows the eternal duty of confidentiality even more than other states. This duty creates the fiction of the irrebuttable presumption of shared secrets within a law firm. According to this myth, we lawyers meet at the water cooler (or Starbucks) and willy-nilly breach our sacred duties by telling everything we know to everyone in our new firm. Beyond the impression such conduct would convey, (the new firm would lock up all their files), the irrebuttable presumption imputing the knowledge of one attorney to the entire firm cannot be reconciled with our designation as “officers of the court.” That title implies honesty and trustworthiness, yet current case law presumes that we are cavalier and unethical.

Forsyth wisely recognizes that “changing realities of law practice call for a more functional approach to disqualification.” It acknowledges that lawyer mobility is a fact of life, that clients have a right to counsel of their choice and that specialized practices engender greater problems with conflicts. Confidentiality need not be sacrificed, because prophylactic screens can keep confidences inviolate, as envisioned by our Supreme Court in Dept. of Corp. v. SpeeDee Oil (1999) 20 Cal. 4th 1135. Three states already have rules authorizing screens. Increasing interstate and multi-jurisdictional practice makes the case for screens even more compelling.

To make shielding effective, lawyers would need specific guidelines and  protocols, including periodic reminders to firm members, someone responsible for wall maintenance, and consequences for breaches. These goals could be materialized in a “dream decision,” in which all lawyers are accorded the same rights, dignity, and presumption of honesty that is due “officers of the court.”