California Lawyers Association Ethics Committee Issues Formal Opinion on Ethical Screens
The opinion promises to be a vital resource for any law firm wishing to minimize the risk of conflicts. Several rules of professional conduct expressly provide for implementation of a screen without client consent to rebut the presumption of shared confidences, and CLA’s opinion clarifies and expounds on those rules, including 1.0.1(k) (which provides a definition of the term “screened”).
The opinion addresses the elements an ethical screen must have in circumstances where such a screen is expressly required by the rules. Importantly, the opinion notes that there may be a distinction between what is ethically required to comply with professional obligations and what a court may view as necessary to avoid disqualification, which sometimes may be granted without a violation.
The most critical ethical screen factors are those expressly set forth in the rules. The screen must be implemented in a timely manner and include preventative measures to protect against the confidential information of the former or potential client from being shared with others in the firm. There should be no communications related to any matter being protected in either direction across the screen.
The lawyers whose conflict results in them being screened off should not receive any portion of the fees from the matters they are screened from. And the affected clients must receive notice of the fact of the screen and its terms so they have an opportunity to comment about them. Additional factors may help the efficacy of the screen in preventing the sharing of confidential information, but whether they should be implemented largely depends on the circumstances.
Any ethical screen must ultimately be judged by whether it is sufficient to meet its purpose, to satisfy concerns that a prohibited attorney has not and will not have any involvement with, or communication concerning, the screened matter that would support a reasonable inference that confidential information was or will be disclosed.
CLA’s CEO and Executive Director Ona Alston Dosunmu lauded the Committee’s first opinion. “This important opinion demonstrates our commitment to provide analysis and thought leadership to support the ethical practice of law. CLA will continue to provide its members and the legal community with guidance and resources to promote excellence in the practice of law,” said Dosunmu.