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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. |
