By David Majchrzak and Edward McIntyre
Issue:
Is a lawyer and his new firm subject to disqualification, notwithstanding the fact that the lawyer has been ethically screened since the date of hire, when the lawyer formerly represented a party in litigation and then joined a law firm representing an adverse party?
Analysis:
Yes. Applying former Rule of Professional Conduct 3-310 (E), which prohibited lawyers from representing a new client whose interests are adverse to those of a former client on a matter in which the lawyer has obtained confidential information, the Court of Appeal upheld the disqualification of a lawyer and his new firm because he had previously been at another firm, and worked on a matter, in which a client of his new firm had interests adverse to his former client.
The court applied the presumption that, because the matters were substantially related, the lawyer possessed confidential information of his former client adverse to the former client, requiring disqualification. Further, the court applied the general rule that, where a lawyer is disqualified, the entire law firm was vicariously disqualified, especially when the lawyer’s disqualification was due to his former representation of the opposing party in the same matter.
The court further said that the fact the lawyer worked for the firm representing the adverse party in the same litigation presented the same concerns as if the lawyer represented the adverse party himself. That he was not the attorney of record or listed on documents or other communications at his new firm to avoid disqualification “would allow for an exception that would swallow the rule.”
The court rejected the ethical screen argument because the lawyer had possession of his former client’s confidential information from having worked on the matter. The court distinguished this from the circumstance where a lawyer could establish the lawyer had no confidential information because the lawyer had never worked on the matter at issue, creating a rebuttable presumption with the burden on the challenged law firm to establish that screening has been effective.
With respect to a second, substantially related lawsuit in which both the lawyer and his firm were also disqualified, the court upheld disqualification for all the same reasons. In addition, it treated as a suspect a memorandum regarding the screen that attempted to memorialize an ethical screen that had purportedly been in place since the lawyer began work at the firm, even though the memorandum was created later.
David Majchrzak and Edward McIntyre are co-editors of Ethics Quarterly.