When can a law firm use an ethical screen to avoid being disqualified because one of its lawyers has a conflict from a prior matter?

Plain-English summary

Opinion 279 (adopted March 18, 1998) responded to numerous inquiries about when, if ever, a firm can cure the imputed disqualification of all its lawyers by erecting a screen (sometimes called an "ethical wall") around the one lawyer with the conflict. The committee worked through four steps: when an individual lawyer is disqualified, when that disqualification is imputed to the whole firm, the limited instances where a screen cures the imputation, and what a screen must contain.

An individual lawyer is disqualified in a range of situations, including a current-client conflict (Rule 1.7), preparing an instrument giving the lawyer or a relative a substantial gift (Rule 1.8(b)), a substantially related adverse matter against a former client (Rule 1.9), prior personal and substantial participation as a government employee (Rule 1.11), and acting as an intermediary where the Rule 2.2 conditions cannot be met. Under Rule 1.10(a), disqualification under Rules 1.7, 1.8(b), 1.9, or 2.2 is imputed to the entire firm; some other individual disqualifications are not imputed, though a voluntary screen may still be prudent.

On screening, the committee's core conclusion was that screening over an affected client's objection generally cannot cure imputed disqualification where the disqualified lawyer was in private practice when the disqualifying representation occurred, which it described as the rule in most U.S. jurisdictions. It identified the narrow exceptions. Under Rule 1.10, a screen cures imputed disqualification in two circumstances: where the lawyer's disqualification results solely from consulting a prospective client with whom no client relationship formed, and where the disqualified individual was not a lawyer (for example, a paralegal, summer clerk, or clerical employee) when she acquired the adverse party's confidences. Under Rule 1.11, the disqualification of a former government employee is imputed to the new firm only if the firm fails to follow the rule's screening and notice requirements: the lawyer must be screened from participation and from sharing fees in the matter, and the lawyer and firm must give written notice to the former agency and the parties before beginning the representation.

The committee also described what a screen requires when it is permitted. Drawing on its earlier Opinion 227 and case law, it listed barring the disqualified lawyer from involvement in the matter, barring discussion of the matter between that lawyer and those working on it, denying the disqualified lawyer access to the matter's files (including electronic files), denying the working lawyers access to the disqualified lawyer's related files, and giving written notice of the screen to firm personnel and the client. It noted that, where appropriate, file protection can include labeling or storing files in a secure location, and that compliance with the conduct rules does not necessarily satisfy separate conflict-of-interest statutes such as 18 U.S.C. Sections 207 and 208.

Currency note

The D.C. Bar flags Opinion 279 as having been substantively affected by the amendments to the D.C. Rules of Professional Conduct that became effective February 1, 2007.

This opinion was issued in 1998, before the District of Columbia's adoption of the 2007 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a private firm screen a lateral lawyer to avoid disqualification?

A: Generally no. The committee concluded that, over an affected client's objection, a screen does not cure imputed disqualification where the disqualified lawyer was in private practice when the disqualifying representation occurred, which it described as the majority U.S. rule at the time.

Q: When does a screen cure imputed disqualification?

A: The committee identified three situations: where the disqualified person was not a lawyer when she acquired the adverse party's confidences, where the lawyer was a government employee when involved in the related matter, and where the disqualification arises solely from a prospective-client consultation that did not become a representation.

Q: What did the opinion require for screening a former government lawyer?

A: Under Rule 1.11, the committee concluded the lawyer must be screened from any participation in the matter and from sharing its fees, and the lawyer and firm must give written notice to the former agency and the parties before the representation begins.

Q: When must a screen be put in place?

A: The committee concluded a screen is effective only if erected in a timely manner, generally at or before the time the conflict arises, whether from a lateral arrival or the acceptance of a new matter.

Background and rules framework

The opinion interpreted D.C. Rules 1.7, 1.8(b), and 1.9 (individual conflicts), Rule 1.10 (imputed disqualification and its prospective-client and nonlawyer exceptions), Rule 1.11 (successive government and private employment, with its screening and notice procedure), and Rule 2.2 (intermediary), drawing on the committee's prior Opinions 227 (1992) and 275 (1997) and on federal screening case law.

Citations and references

Rules of Professional Conduct:

• D.C. RPC 1.7, 1.8(b), 1.9 / Model Rules 1.7, 1.8, 1.9 (individual conflicts)
• D.C. RPC 1.10 / Model Rule 1.10 (imputed disqualification; prospective-client and nonlawyer screening exceptions)
• D.C. RPC 1.11 / Model Rule 1.11 (former government lawyers; screening and notice)
• D.C. RPC 2.2 (intermediary)

Statutes:

• 18 U.S.C. Sections 207 and 208 (conflict-of-interest rules for former government employees)

Cases:

• LaSalle Nat'l Bank v. County of Lake, 703 F.2d 252 (7th Cir. 1983), timing of a screen
• Kesselhaut v. United States, 555 F.2d 791 (Ct. Cl. 1977), file-security elements of a screen

Other opinions cited:

• D.C. Ethics Ops. 227 (1992), 228 (1992), 255, 272 (1997), 275 (1997); ABA Informal Op. 88-1526 (1988)

See also

• ABA Formal Op. 510: Avoiding Imputation of a Prospective-Client Conflict
• ABA Formal Op. 99-414: Ethical Obligations When Changing Firms
• DC Ethics Op. 285: Screening Ex-Government Nonlawyers

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-279