Monday, August 3, 2009

ABA fixes problems with new Model Rule 1.10

As is well known by now, earlier this year the ABA approved an important amendment to Model Rule 1.10 which recognizes "screening" as an acceptable way to avoid conflicts of interest caused when an attorney joins a new firm. Soon after the amendment was approved, however, it became clear that the rule was drafted in a way that seemed to suggest that screening could be used to avoid conflicts in cases of concurring conflicts - which was never intended. Go here for my reports on the approval of the new rule and the problem in drafting.

Now comes word that the ABA has approved new changes to the new Rule to correct the mistake. In order to make clear that the rule applies only to laterally hired attorneys, the new rule would read as follows

Model Rule 1.10:

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless

(1) the prohibition is based upon a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; or

(2) the prohibition is based upon Rule 1.9(a) or (b), and arises out of the disqualified lawyer’s association with a prior firm, and . . . .

Thanks to Legal Ethics Forum for the update.

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