Your intake staff checks dozens (or hundreds) of potential conflicts every day. You’re also navigating potential former client conflicts with lateral hires. Every disqualification means lost revenue—but a strong ethical wall might save the client relationship.
Walls (also known as ethical screens or screens) lock the screened person out of a client’s matter. When used appropriately, they protect you and your client. But tread carefully: mistakes can mean ethical complaints or having to return fees collected.
In this article, we reference ABA model rules to provide general information about ethical screens. There are, however, significant variations among jurisdictions’ ethical rules and case law, and firms should carefully review relevant law. The ABA provides some guidance on jurisdictional differences but may not reflect current legal guidance.
You can avoid disqualification with a wall (in some cases)
Imagine a car accident: Driver A and Driver B collide. Attorney Alex may not represent both Driver A and Driver B, because the drivers’ interests are directly adverse. (ABA Model Rule 1.7.)
That conflict of interest would also apply to everyone in Alex’s firm, unless there is an exception.(ABA Model Rule 1.10.) This creates problems when lawyers change law firms, because lawyers also have duties to former clients. (ABA Model Rule 1.9.)
Let’s say Alex’s firm chose to represent Driver A. Later, Alex gets a job offer from a new firm, and that firm represents Driver B. If the new firm hires Alex, Alex’s continuing duty to Driver A could disqualify the new firm from serving Driver B. The new firm would lose a client and Driver B would lose representation.
Screening Alex out of the matter with an ethical wall might resolve the problem. (ABA Model Rule 1.10(a)(2).) Alex would have to be locked out of the matter entirely: no communication about the case, no access to physical files or documents, and no access to computer records
Some conflicts can’t be avoided with ethical walls, even if clients consent. Analyzing conflicts is tricky and fact-intensive, and some firms retain conflict counsel to assess lateral hires.
Walls aren’t just for former firm conflicts and attorneys
Ethical walls can come up when:
- Attorneys move to a firm from an in-house, government, judicial, arbitrator, or mediator role. (ABA Model Rule 1.10(a)(2), 1.11, 1.12(c).)
- A firm takes on representation adverse to a prospective client, even though the prospective client never hired the firm. (ABA Model Rule 1.18(d).)
- A client or former client requires an ethical wall as a condition of waiving a conflict.
- It may also be necessary to set up walls for paralegals or other professional staff.
Walls typically have 4 core components
While ethical wall rules and case law vary, most include these four elements:
- Timely. Walls should be created as soon as they become necessary. Ideally, they are created before the screened attorney has any access to information, like prior to hiring for a lateral attorney.
- No financial benefit. Screened attorneys can receive regular salaries, but should not receive compensation (including bonuses or credits) directly related to the matter.
- Notice. Firms must inform affected clients. The ABA model rule requires a “description of the screening procedures employed; a statement of the firm’s and of the screened lawyer’s compliance with these Rules; a statement that review may be available before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures,” plus ongoing reporting.
- Robust. Simply telling people not to share information may not be enough. You must make every effort to ensure that nothing crosses the wall. That might include:
- Taking immediate action on violations and holding violators accountable.
- Controlling physical access, like files and work environments.
- Locking down computer records related to the representation.
Keep digital information locked down with Orion
Strong digital controls are essential to creating a proper ethical wall. Orion makes it easy to prohibit digital access at the matter level, so you can take action immediately when a potential conflict arises.
Ready to learn more? Set up an Orion demo today.