13. Chinese Walls/Screens When can a law firm use a "Chinese wall" to screen an attorney to avoid a conflict of interest? A common misconception regarding conflicts of interest is that a law firm can "cure" a conflict of interest stemming from one lawyer’s work by screening that attorney from the rest of the firm with regard to that matter. Actually, the ethics rules do not allow for a screen, or Chinese wall, to cure conflicts of interest in most contexts. Specifically, most conflicts involve an attorney’s work for a current or former client. Rule 1.7 addresses conflicts regarding current clients and Rule 1.9 addresses conflicts triggered by work done for former clients. Both of those types of conflicts are imputed to all members of the lawyer’s firm under Rule 1.10. Thus, if an attorney must decline or withdraw from a case because of work he’s done for a current or former client, all members of his firm face the same conflict. The "cure" for such conflicts, for the lawyer or any member of his firm, is not a screen, but rather consent from the former and/or the current client. Note that for conflicts under Rule 1.7, consent is not sufficient in certain instances. There are two exceptions in the rules where a screen is acceptable: to avoid imputation of a conflict: "revolving door" situations involving government attorneys and situations involving former judges and arbitrators. Rule 1.11 addresses attorneys switching from government practice to private practice, and vice versa. Paragraph (b) of that rule outlines a screening procedure for an attorney in a private firm who had worked "personally and substantially" on a matter where another member of that firm now will represent a party "in connection with" that matter. Rule 1.12 addresses the private practice of former judges and arbitrators. Paragraph (c) outlines a screening procedure for an attorney in a private firm who had participated in a matter as judge or arbitrator where another member of the firm will now represent a party in that same matter. Outside the scenarios addressed by Rules 1.11 and 1.12, a screen is not a sufficient cure for conflicts of interest triggered by the ethics rules. Neal A. Puckett, Esq LtCol, USMC (Ret) Puckett & Faraj, PC Washington DC | Virginia 888.970.0005 The information contained in this electronic message is confidential, and is intended for the use of the individual or entity named above. If you are not the intended recipient of this message, you are hereby notified that any use, distribution, copying of disclosure of this communication is strictly prohibited. If you received this communication in error, please notify Puckett & Faraj, P.C. at 888-970-0005 or via a return the e-mail to sender. You are required to purge this E-mail immediately without reading or making any copy or distribution. |