South Carolina Lawyer
SC Lawyer, September 2009, #5.
Screening to Avoid Conflicts of Interest - What, When, and How
South Carolina LawyerSeptember 2009Screening to Avoid Conflicts of Interest - What, When, and How?Conflicts of interest are one of the most common ethical problems that law firms face. One way of dealing with a conflict of interest is through the informed consent of the affected clients confirmed in writing. SCRPC 1.7(b)(4). See Conflict Waivers [sic?] - A Primer, S.C. Lawyer, March 2009 at 8. Firms can also handle some conflicts through screening (sometimes called a "Chinese Wall") of the lawyer who is subject to the conflict. But what exactly is screening, when can firms use screening, and what steps are required for an effective screen?
What is screening?
The concept of screening is tied to the principle of imputed or vicarious disqualification found in SCRPC 1.10. Under that rule, if a lawyer in a firm faces a conflict under either Rule 1.7, which deals with conflicts between current clients; under Rule 1.9, which deals with conflicts with former clients; or under Rule 1.8(c), involving preparation by a lawyer of an instrument that makes a substantial gift to the lawyer or a member of the lawyer's family, that disqualification is imputed to every member of the disqualified lawyer's firm.
In general terms, screening is a method of avoiding the imputation of a conflict of interest from one member of the firm to other members of the firm. If the firm timely erects a proper screen of a disqualified lawyer (see below), the disqualification does not affect the ability of other members of the firm to represent a client.
When can screening be used?
The basic, but not the exclusive, purpose of screening is to establish procedures to protect against the misuse of confidential information, SCACR 1.10, cmt. 9. When disqualification of a lawyer arises from circumstances other than the possession of confidential information, screening is normally not permitted. In particular, Rule 1.8(a) - (i) set forth a number of situations in which a lawyer has a conflict of interest in connection with representation of a current client. These special conflicts situations cannot be avoided by screening of the affected lawyer from participation in the representation of the client. Similarly, if the disqualification is based on the duty of loyalty rather than the duty of confidentiality, screening is generally not permitted. Thus, concurrent conflicts under Rule 1.7(a) are not subject to screening.
Comment 8 to Rule 1.0 lists rules in which screening is permitted - 1.8(l), 1.10(e), 1.11, 1.12, or 1.18, but...