“Conflict of Interest” Rules Will Be Getting More Lenient

February 3, 2009

angel-devil-shoulderOne of the major sources for ethics rules for lawyers is the American Bar Association(“ABA”) Model Rules. The ABA’s Model Rules define the proper conduct of an attorney where there is, or may be, a conflict of interest between an attorney’s representation of a current client and that attorney’s, or any attorney at his/her firm’s, former client. In the ABA Model Rules, this is Rule 1.9.  These rules are especially relevant in New York because in two months, on Apr. 1, 2009, New York will adopt these rules as binding on attorneys in New York.

The Model Rules currently state that when an attorney moves to a new firm, all of that attorney’s former clients become “conflicted” with all of the new firm’s clients that have an adverse relationship with the old firms clients. For those “conflicted” clients in the new firm, written consent must be gathered, in order to remove the conflict of interest.

Furthermore, the current rules only allow “screening” (segregating conflicted attorneys from any involvement with a client or case with which they are “conflicted”) with regard to attorneys who used to work for the government. But attorneys that were in private practice before joining the new firm cannot be “screened” from the “conflicting” client’s case without also getting written consent from the new firm’s clients.

That seems to be changing. The ABA is meeting in Boston in about a week to discuss changing this rule in order to make it easier for the growing number of attorneys who are shifting laterally between firms to avoid the inconveniences involved in conflicts of interest. Here are the two proposed changes that are on the table, as explained by Leigh Jones at Law.com:

Recommendation 109 — eases the conflict of interest rule by allowing a law firm to “screen” an incoming attorney from the rest of its attorneys and to enable the firm to continue representing its client without the consent of the incoming attorney’s former client.

Recommendation 110… adds to the existing Model Rule, which does not permit firm-to-firm screening and instead requires client consent. The change would allow a lawyer, whose participation with a client at a previous firm was not significant and who did not learn material confidential information, to work for an adversary law firm without client consent, so long as the transferring lawyer was screened and provided certification of compliance with screening.

Although, as a future attorney, I would definitely like the prospect of not being inconvenienced by “conflicts of interest” law, I’m not sure I see why Recommendation 109 is necessary or advisable. If indeed it permits all attorneys in a lateral transferee’s new firm to represent their clients whose interests conflict with the former clients of the new transferee without obtaining waivers (as long as the new attorney is “screened” from those matters), that may be going too far. This sounds like it is allowing “screening” and waiver-less representation of conflicting clients even where the new attorney had material knowledge about his former client!

I think the current rule which does not allow “screening” of new attorneys is based on the idea that even if an attorney is not actually working with a client because they are “screened,” much of the communication between conflicted and non-conflicted attorneys can go on “under the table,” unofficially.  “Screening” without informed consent, where the new attorney in a firm had actual or material knowledge about a former client, opens the door to the unofficial exchange of relevant information about that client between a conflicted  attorney and his/her new colleagues, who represent some adverse party to that former client.

Recommendation 110 makes much more sense to me because it is not over-broad. Instead of permitting screening even where a new attorney had actual and relevant knowledge about a former client that has some adverse interest with the current client of the new attorney’s firm, it only permits consent-less “screening” when the new attorney in the firm didn’t have any actual or material knowledge about his former client. To go further than this puts attorney’s convenience above the actual interests of their clients unnecessarily.

Other than making things easier for attorneys who transfer laterally between firms, what’s the justification for allowing consent-less “screening” even when an attorney in a firm some former representation that givfes him actual and material knowledge about a colleage’s client’s adversary???

3 Responses to ““Conflict of Interest” Rules Will Be Getting More Lenient”

  1. […] 25, 2009 Well, despite my well-reasoned advice that the ABA adopt Recommendation 110, instead it adopted Recommendation 109 at their annual […]

  2. When I originally commented I clicked the “Notify me when new comments are added” checkbox
    and now each time a comment is added I get four e-mails with the
    same comment. Is there any way you can remove me from that service?

  3. […] despite my well-reasoned advice that the ABA adopt Recommendation 110, instead it adopted Recommendation 109 at their annual […]

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