Ethics Corner Article
New Hampshire Bar News – September 14, 2012
Dear Ethics Committee: I have recently lost my job at a mid-sized firm. I was an active litigator and now am concerned about applying for positions in firms that represented the opposing litigating party. Do I have to be concerned?
In modern times, with increasing job mobility, it is a concern for lawyers who are searching for employment to be able to both obtain a new position and keep the confidences of their former clients. Fortunately, on January 25, 2012, the NH Supreme Court adopted changes to NH Rules of Professional Conduct Rule 1.10 to deal with this ever-changing reality of lateral job transfers. The rule now provides that the new firm may be able to screen a disqualified lawyer from conflicted cases. Disqualification is determined by Rule 1.9, which provides that a lawyer cannot represent someone in a similar matter that is adverse to a former client.
Screening permits the remaining members of the firm to undertake or continue representation in the disqualified matters. The new screening process requires the following to avoid disqualification, discipline or potential fee forfeitures:
(1) the lawyer provide the former client (or his or her counsel) with an affidavit assuring compliance with the lawyer’s ethical rules of confidentiality; and (2) a partner, officer or shareholder in the new firm provide the former client (or his or her counsel) with a similar affidavit assuring the former client that the firm’s members and employees are aware of the disqualification of the new lawyer.
The affidavit must also describe the screening process and the firm must agree to respond promptly to written inquiries or objections asserted by the former client. (3) If requested by the former client, similar affidavits should also be prepared after the disqualifying matter terminates.
There is one limitation, though: a disqualified lawyer cannot be screened as set forth above if the lawyer had “substantial involvement” in a matter at the time of the firm transfer that would be the focus of the screening. This more restrictive requirement of the NH rule differs from the American Bar Association model rule because it balances both a lawyer’s interest in job mobility and the equally important interests of former clients in ensuring that confidential information is not used by the hiring firm against them.
Successful screening requires the following: (1) all attorneys in the firm must be prohibited from discussing the case with the disqualified attorney; (2) the disqualified attorney must be barred from accessing the case file, either physically through locks or through other security measures; and (3) the disqualified attorney cannot share in the profits or fees derived from the representation. Additionally, screening must be done before any representation is undertaken or when the disqualified attorney is hired, or the entire firm will be disqualified.
Therefore, before applying to another firm, consider the following carefully: (1) did I participate actively or receive any material matter of clear and weighty importance in the representation of a former client and (2) is the matter still ongoing between the old and new firms? If no to both, you can apply to the firm in question and the screening process should be followed closely. If yes, you will need to raise the issue with the hiring firm to determine if screening is even possible, due to the disqualifying ongoing matter.
The Ethics Committee provides general guidance on the NH Rules of Professional Conduct with regard to a lawyer’s own prospective conduct. New Hampshire lawyers may contact the Ethics Committee for confidential and informal guidance by emailing the Ethics Committee Staff Liaison. Brief ethics commentaries based upon member inquiries and suggestions will be published monthly in the NH Bar News.