California Bar Journal
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Protect your firm --- build ethical walls

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Diane KarpmanIn 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.