Monday, February 16, 2009

ABA approves amendment to Model Rule 1.10

The ABA voted today to adopt the proposed change to Model Rule 1.10 which would allow "screening" to avoid disqualification when an attorney who had participated in the representation of an adverse interest joins a new firm. The new firm would now be allowed to continue the representation of its client even though the new lawyer joined the firm.

Note that the ABA's newly adopted rule reflects what has been the rule in Illinois (see Illinois Rule 1.10) and in the 7th Circuit (see Schiessle v. Stephens, 717 F.2d 417 (7th Cir. 1983)) for some time. The Illinois rules and the ABA rules are now in accord over this.

Personally, I have never liked the Illinois/7th circuit approach, and I have even suggested that Illinois should abandon its long standing position, so I am not particularly happy.

One concern over screening is that the former clients really have no effective way of monitoring whether the screens are implemented or whether they are efficient. Most unethical conduct in this context can easily go undetected. The ABA committee seems to take the position that we can rely on the courts to impose disqualification but this seems to be inadequate in this particular context. As pointed out by Rob Vischer at Legal Ethics Forum, although the newly adopted rule and comments suggest that disqualification is still possible, they do not indicate that disqualification may be appropriate simply because the lateral lawyer was so heavily involved in the representation of the opposing party while at his or her former job, as opposed to disqualification based on deliberate misconduct or negligent handling of confidential information by the lawyer switching firms.

The debate over the proposal has been strong but in the end the ABA Ethics Committee proposal was approved by a vote of 226 to 191.

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