Legal Ethics Corner
Ethics Corner is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

 
Ethical Walls and Vicarious Disqualification: The Movement Towards Possible Judicial Acceptance of Ethical Walls (Part Three of Three) 
           
In the two immediate prior Ethics Corner pieces we addressed: 1) that no published California case has recognized the validity of an ethical wall to save a law firm from vicarious disqualification when the conflicted attorney moves from one private firm to another; and 2) the reasoning, application, and limitations of ethical walls to save a firm from disqualification when the conflicted attorney moves from a government post to a private firm. There is, however, a movement to gain judicial acceptance of faithfully guarded ethical walls in the private firm to private firm context.
 
A major step in this direction was taken earlier this year when the ABA House of Delegates amended Model Rule of Professional Conduct 1.10  (Imputation of Conflicts of Interest: General Rule). In general terms, the new rule provides that a firm (but not the conflicted lawyer) can represent a party now adverse to the conflicted lawyer’s former client without that former client’s consent if:
 
1)         the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefore;
 
2)         written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of the rule; such notice must include:
 
                        a)         a description of the screening procedures employed;
b)         a statement of the firm's and of the screened lawyer's compliance with the rules;
                        c)         a statement that review may be available before a tribunal;
d)         an agreement by the firm to respond promptly to any written inquiries/objections by the former client about the screening procedures;
 
3)         certifications of compliance with the rules and with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the former client's written request and upon termination of the screening procedures. (Rule 1.10 may be found at www.abanet.org/cpr/mrpc/rule_1_10.html.)
 
Even prior to this change, however, certain California cases were pushing in the direction of recognizing ethical walls in the private-to-private practice context. The general rationale is that if the conflicted attorney is screened timely and effectively, the former client’s confidences remain secure, the current client gets to retain counsel of choice, and the conflicted attorney’s employment opportunities are not restricted. An analogy is often drawn from the government-to-private practice context.  The screening procedures normally include a standing directive to all firm members and to the conflicted attorney that no information about the prior representation is to be shared; that they not communicate in any way about the former client’s case or the pending one, with which the conflicted attorney is to have no involvement; that the conflicted attorney not have access to the firm’s files and that the firm not have access to the file of the conflicted attorney’s former client. (See, e.g., In re County of Los Angeles (9th Cir. 2000) 223 F.3d 990 [although dealing with a federal magistrate who joined a private firm, the court discusses acceptable screening procedures, and notes “We read [People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135] as sending a signal that the California Supreme Court may well adopt a more flexible approach to vicarious disqualification.”].) 
 
In 2002, the local case of Panther v. Park (Fourth Dist., Div. One 2002) 123 Cal.Rptr.2d 599 (previously reported at 101 Cal.App.4th 69), would have been the first published case to reject the categorical vicarious disqualification rule in the private-to-private firm context. Therein, the Court of Appeal in San Diego allowed for screening like that described above. However, review was at first granted and then later dismissed via motion; the Supreme Court directed the Court of Appeal to vacate its decision and dismiss the petition for writ of mandate that gave rise to the opinion, thereby leaving the case unciteable. (Calif. Rule of Court 8.1115(e)(1).)
  
Only time will tell whether the California Supreme Court will accept ethical walls to save firms from vicarious disqualification. However it plays out, the Court has stated that “[t]he paramount concern [in disqualification motions] must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar.” (SpeeDee Oil, supra, 20 Cal.4th at 1145.) Whether that concern can be reconciled with a wall has yet to be seen. Accordingly, until such a judicial pronouncement comes into being, relying upon an ethics wall to save a firm from vicarious disqualification is a risky proposition.
 
--Luis E. Ventura
 
**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**