Drafting Problem with New Model Rule 1.10

The recently amended Model Rule 1.10 permits a law firm to erect a screen around a recently hired attorney to prevent that lawyer's conflicts from being imputed to the rest of the firm.  At least that's what I thought it did.  During a recent conversation with Professor Nancy Moore (chief reporter for "Ethics 2000"), she encouraged me to take another look.  She explained that she had been in touch with the ABA's Standing Committee on Ethics because the rule as drafted appeared to permit screening even for non-migrating attorneys.  She indicated that the Committee was going to address the issue.

I'm glad to hear it.  Although the clear intention of the drafters and the House of Delegates was to permit screening only in the case of a laterally hired attorney (here is the original report), the rule that was adopted has no such limitation.  New Rule 1.10(a) provides an exception to the normal imputation rules when:

(2) the [conflict] is based upon Rule 1.9(a), (or (b)), and

(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefore;

(ii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule, which shall include a description of the screening procedures employed; a statement of the firm's and of the screened lawyer's compliance with these Rules; a statement that review may be available before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures; and

(iii) certifications of compliance with these Rules and with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the former client's written request and upon termination of the screening procedures.

I contacted George Kuhlman, ethics counsel and associate director of the ABA's Center for Professional Responsibility, and he confirmed that this issue has been identified and is being addressed.  He explained the issue this way:

The Chair of the Ethics Committee, Robert Mundheim, in presenting the proposal to the ABA House of Delegates, began his remarks by noting that the amended Rule applies to lawyers moving from one private firm to another private firm.

There is a defensible argument that, notwithstanding the apparent breadth of the amendment's language, the type of conflicts that "reside entirely within a firm," (to rephrase what you're referring to) entail a Rule 1.7(a)(2) analysis, and the revised Rule 1.10 does not permit screening for conflicts arising under Rule1.7.

However, the rather confusing overlap, or intersection, of Rule 1.7's reference to "former clients" and the separate Rule 1.9 addressing "Duties to Former Clients" does make the question a nagging one, and there was an agreement made with the spokesperson for the Litigation Section that there would be a "housekeeping" change to the new amendment language that would make it unequivocal that it is to apply only where lawyers move.  That language -- a very concise phrase -- will be approved by the ABA's Ethics Committee in a meeting tomorrow, and will be sent to the ABA Policy Administration Office for acceptance.  Within a week or so, the Center for Professional Responsibility will make a broad public announcement of the "final, final" language of the amendment. 

We'll keep you posted on what the final language looks like.  For professors who are about to cover Rule 1.10, this is a great opportunity to bring up the challenge of legislative drafting!

Comments

[David Hricik]

This is what I raised up a while ago on this blog when I first saw this: it applies clearly to currently associated lawyers. The language has nothing to do with migration, and I had no idea that's what they were shooting for until you posted this. As written it's a travesty.

If what they were trying to do was draft something for migrating lawyers, they totally missed the mark and need to nix the thing entirely and start over.

[Taobao buy]

Um...like the style of your writing.*_*