California Bar Journal
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Screening: A possible solution to conflicts of interest
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will take another look at its ethics rules and we wanted to provide a forum for discussion and kick around a few ideas."

A panel titled "Scaling Ethical Walls" will consider non-consensual screening, a client protection mechanism which is not addressed by the California Rules of Professional Conduct. It refers to a set of procedures put in place at a law firm when it hires an attorney from another firm who may bring with him or her confidential information about a client.

The so-called ethical wall is designed to prevent the entire firm from being tainted, and disqualified,  if it takes on a case against a current or former client of the new lawyer's former firm - without the clients' consent.

"It basically loosens up the business of law," says ethics expert David Bell.

But easing practice rules faces competing interests, including, first and foremost, protection of clients, the ability of clients to choose their own lawyers, and how lawyers and the legal system will be viewed by clients.

"I don't know how high convenience for lawyers will rank," said Los Angeles attorney and former COPRAC chair Robert Kehr. "It's one of the things people talk about when they talk about the need to re-examine old rules."

California law currently does not provide for a law firm to impose a screening device without the consent of a client, Kehr explained. "But there are some hints that California courts may be prepared to re-examine the issue and there are developments in that direction in other states," he said.

Non-consensual screening rules have been adopted by some states and proposed amendments to the ABA Model Rules currently under consideration would permit non-consensual screening, Kehr said.

Three narrowly drawn California court decisions have suggested some openness to the issue without addressing it directly. In a 1999 disqualification case (People v. Speedee Oil Change Systems), the Supreme Court said it would not comment on screening because it was not present in the case. Some experts interpret that as a hint the court may look at screening in an appropriate case.

An appellate decision last year (County of Los Angeles v. U. S. District Court (Forsyth)) held that a law firm did not have to disqualify itself because a new member of the firm (a retired magistrate) had participated in a prior case's settlement negotiations. And in another disqualification case (Adams v. Aerojet-General Corp.) earlier this year, an appellate court ruled that a firm need not be disqualified where "there is no reasonable probability the firm-switching attorney had access to confidential information while at his or her former firm that is related to the current representation."

The court noted in Aerojet that disqualification in certain instances "is out of touch with the present-day practice of law. Gone are the days," the court wrote, "when attorneys (like star athletes) typically stay with one organization throughout their entire careers."

Kehr said screening has become a significant issue in recent years with the explosive growth of law firms into what are considered mega-firms. "How in the world can you run a law firm of any size with lateral transfers without running into conflicts problems?" he asks. "Probably the most significant ethics issues for large firms are conflicts problems that result from the size of the firm."

Conflicts of interest are the focus of two other seminars at the symposium: one addressing AB 2069, a measure instructing the State Bar to study conflicts that may arise for attorneys who represent both an insurer and an insured, and the other examining representation of corporations - the parent company, subsidiaries and other affiliates.

Another panel will address ethical obligations of a prosecutor who suspects a police officer is not truthful, and the fifth will look at the lawyer as whistleblower.

The symposium, which is expected to attract 100 to 150 participants, will take place June 16 at Western State College of Law in Fullerton. Mohr said he hopes to attract representatives of the insurance industry and in-house counsel as well as ethics experts and interested members of the profession.

Participants can earn up to six hours of MCLE credit in ethics. Registration is $75. For further information, contact Audrey Hollins at 415/538-2167.