B-law B-law B-law: Ethics for Business Lawyers Annual Review 2021
| Publication year | 2022 |
| Author | Written by Neil J Wertlieb |
Written by Neil J Wertlieb
This edition of B-Law B-Law B-Law highlights certain ethics advisory opinions that were issued during 2021 by the California Lawyers Association's Ethics Committee ("CLAEC"), the California State Bar's Committee on Professional Responsibility and Conduct ("COPRAC"), the American Bar Association's Standing Committee on Ethics and Professional Responsibility ("ABA"), the San Diego County Bar Association's Legal Ethics Committee ("SDCBA"), and the San Francisco Bar Association's Legal Ethics Committee ("BASF"), as well as recent changes in the California Rules of Professional Conduct.
This opinion addresses the elements of ethical screens that effectively comply with the California Rules of Professional Conduct. California Rules of Professional Conduct rule 1.0.1(k) provides a definition of a screen that, while helpful, does not provide a detailed roadmap for a law firm instituting an ethical screen. Whether a screen is effective at meeting these standards must be determined on a case-by-case basis. But four required elements are (1) timely imposition of the screen, (2) prohibitions of communications across the screen, (3) no fee-sharing with prohibited persons, and (4) notice to affected clients. Other factors that may be considered when evaluating the efficacy of a screen include the physical and operational separation of those on each side of the screen, limitation of prohibited individuals' access to the screened matter's file, the communication employed within the firm regarding its terms, negative internal consequences for violations of the terms, and the monitoring of the screen. This opinion does not consider the circumstances under which conflicts may be addressed through an ethical screen where a waiver is obtained.
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Issues:
- When a prospective client has provided confidential information to an interviewing lawyer, may the interviewing lawyer disclose that information or use it to the prospective client's disadvantage?
- When the interviewing lawyer has received material confidential information from a prospective client, under what conditions is ethical screening available so that other lawyers in the lawyer's law firm may represent other clients who are adverse to the prospective client in the same or substantially related matters?
- To what extent can a prospective client give advanced informed written consent to permit other lawyers in an interviewing lawyer's law firm to be adverse to a former prospective client in the same or substantially related matter in circumstances where the interviewing lawyer is screened from the representation but the precondition for screening in rule 1.18(d) has not been met because the interviewing lawyer did not take the "reasonable measures" required by that rule?
Digest: When a person is a prospective client within the meaning of rule 1.18(a), the interviewing lawyer owes the prospective client the same duty of confidentiality owed to an existing or former client pursuant to rules 1.6 and 1.9 even though no lawyer-client relationship thereafter ensues. The lawyer may not use or disclose such information without the prospective client's informed written consent. This is true even if the information would be material to the representation of an existing client of the lawyer or the lawyer's law firm. The duty of confidentiality to the prospective client outweighs the duty to inform the current client.
An interviewing lawyer who receives material confidential information from a prospective client is prohibited from accepting representation materially adverse to the prospective client in the same or a substantially related matter absent informed written consent. That prohibition is imputed to other members of the law firm unless the interviewing lawyer took reasonable measures to obtain only information that is reasonably necessary to determine whether to represent the existing client and the law firm promptly undertook the screening and other measures specified in rule 1.18(d)(2). Reasonable measures include advising the client to provide only identified information that the lawyer reasonably needs to decide whether to undertake the representation and limiting questioning of the client so as to elicit only such information. The information reasonably necessary to determine whether to represent a prospective client is that which a reasonable lawyer in the situation of the interviewing attorney would require to determine whether the proposed representation was both ethically proper and economically acceptable. It includes information beyond what is required to determine whether the representation is ethically permissible to determine a conflict of interest, may include information as to...
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