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Home Page Official Publication of the State Bar of California October2002
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Diane Karpman


Some theories involving Quantum mechanics, apparently, are not testable on earth. So physicists have a fantastic rationalization for theoretical failure, labeled as "string theory." According to "string theory," there are nine universes connected by a string, and even though an appealing theory doesn't work here, supposedly it works in a parallel or connected universe.

Lawyers too (occasionally) have disconnected realities. In one universe, there is the actual practice of law, while in another universe, law as practiced in reported decisions occurs. Well, disconnected realities have just moved closer in Panther v. Parks (2002) 123 Cal. Rptr. 599 . For years, lawyers have believed that they are basically honest, that they could avoid the taint of a conflict by erecting an ethical screen, and that society benefits from competent, high quality partnerships and law corporations. A universal merger seems to have occurred with Panther.

In Panther, a personally disqualified lawyer, based upon his prior (not concurrent) adverse representation, did not require the vicarious disqualification of the entire firm, because effective and proper screening mechanisms were in place and maintained.

A formidable screen, which would permit a firm to rebut the presumption of shared confidences, has specialized requirements. First, it must be erected in a timely manner. Obviously, you can't jump ship in the middle of litigation. There should be a sunrise and a sunset to representational obligations. The farther off these events are in time, the better. In Panther, the personally disqualified lawyer's involvement concluded before he joined the new firm, so it was not unseemly midstream "side-switching."

The entire firm-partners, associates, clerks, and those who really run the legal community, legal secretaries-were fully informed and on board with the information blockade.

Physical access was closed, including files and mail, which were monitored. Firms have employed color-coded devices and intricate numerical systems to block leaks. Technologically, the tainted lawyer's computer was not part of the office network.

In other firms, specialized passwords have also been effective. Some firms have bent over backwards, circulating monthly memos requiring affirmative oaths and signatures of all those involved in the case. Out-of-state cases imply that firm size is a consideration, insinuating that leaks are less likely to occur in large firms, with a plethora of information.

Yet Panther validated a small firm as being best able to discreetly manage and establish workable controls on information. Finally, the case recognized that someone had to be actually responsible for maintaining the screen, which is essential for rebutting the presumption.

Significantly, the Court balanced the equities of a preexisting nineteen-year client losing their counsel of choice, against the migratory lawyer who had little direct involvement in a case.

The legal press constantly reports merger discussions which fail due to ripe conflicts. Authorities maintain that confidentiality obligations prohibit the growth of national or global law firms. Disqualification motions, which are judicially acknowledged to be occasionally fired like abusive tactical litigation missiles, may lose their nuclear payload if screens are in place.

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