 In
a stunning recent case involving imputed disqualification, Adams v.
Aerojet-General Corp., (2001) 86 Cal. App. 4th 1324, the California
Court of Appeal recognized that confidentiality must be balanced with
the reality of modern practices, i.e., attorneys move, merge and
dissolve. Continuing to apply the substantial relationship theory in a
knee-jerk manner to successive representations is not promoting
fairness. (Motions to disqualify can be abused.)
California lawyers have been erecting screens,
walls and "cones of silence" (my personal favorite) since SpeeDee
Oil, (1999) 20 Cal. 4th 1135, implied that, in the right
circumstances, such a wall might rebut disqualification. Those
"mystery" circumstances must involve the integrity and fortitude
of the ethical wall, since, sooner or later, opposing counsel will try
to knock it down.
Traditionally, timely erection was mandated
immediately upon realization of the problem. The "tainted" lawyer
must be prohibited from accessing any files. Everyone (clerk to
partner) must be restricted from any discussion regarding the case and
be willing to execute a declaration under oath. Obviously, the tainted
lawyer could not personally (financially) gain from the case.
Everyone in the firm should be educated regarding
the duty of confidentiality, so that they understand what is being
protected. Consider locking up the sensitive files with keys being
distributed only to a select few, including electronic files (use
passwords) and don't forget to eliminate access to e-mail.
Sometimes separating the lawyer (such as
relocation to another office) is the only way to prevent casual
dialogue, the type that occurs over coffee or "down the hall." All
meetings and discussions regarding the case should be formal.
Memorialize the names of attendees, so that they are continually
reminded of the issue, and can execute affidavits should the need
arise.
A monthly e-mail reminder requiring that everyone
sign off is another method of ringing the bell. The wall should be
guarded by a principal or managing partner, so that if there is a
problem, someone is designated as being responsible.
In adjudicating the strength of the screen, a
court will likely consider: timely implementation of the wall; whether
the original case was long ago, leading to faded memories; law firm
size (although this is unfair, larger firms have more departments for
segregation and separation, more space, and satellite offices for
relocation); the number of lawyers needing to be screened (screening
one is easier than a dozen); the screened lawyer was merely a junior
associate doing peripheral work or a key player; and whether he or she
is a specialist with limited exposure to the issues of the current
case.
The policy issues involving walls are profound.
Will clients continue to fully trust us if we can screen? Will they
feel betrayed? Remember that clients have been known to manipulate our
fiduciary duties and can "poison the well," or spread their
secrets in anticipation of litigation, to plant the seeds of
disqualification for a future motion. So, erect them quickly, build
them solidly and make certain that they are properly maintained. |
