February 22, 2013 - Oregon State Bar

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$P:\CLEPUB\Books\Disciplinary Board Reporter ... - Oregon State Bar$

$P:\CLEPUB\Books\Disciplinary Board Reporter ... - Oregon State Bar$

OREGON STATE BAR Board of Governors Agenda Meeting Date: February 22, 2013 From: Sylvia E. Stevens, Executive Director Re: Proposed Amendment of RPC 1.10(c) Action Recommended Consider the Legal Ethics Committee’s recommendation that the BOG submit an amendment of Oregon RPC 1.10(b) to the HOD in November 2013. The purpose of the amendment would be to correct a deficiency in the current rule. Oregon’s Current Rule Background Oregon RPC 1.10(c) allows for screening to avoid disqualification when a lawyer moves between firms: When a lawyer becomes associated with a firm, no lawyer associated in the firm shall knowingly represent a person in a matter in which that lawyer is disqualified under Rule 1.9, unless the personally disqualified lawyer is screened from any form of participation or representation in the matter. For purposes of this rule, screening requires that: (1) the personally disqualified lawyer shall serve on the lawyer's former law firm an affidavit attesting that during the period of the lawyer's disqualification the personally disqualified lawyer will not participate in any manner in the matter or the representation and will not discuss the matter or the representation with any other firm member; and the personally disqualified lawyer shall serve, if requested by the former law firm, a further affidavit describing the lawyer's actual compliance with these undertakings promptly upon final disposition of the matter or representation; (2) at least one firm member shall serve on the former law firm an affidavit attesting that all firm members are aware of the requirement that the personally disqualified lawyer be screened from participating in or discussing the matter or the representation and describing the procedures being followed to screen the personally disqualified lawyer; and at least one firm member shall serve, if requested by the former law firm, a further affidavit describing the actual compliance by the firm members with the procedures for screening the personally disqualified lawyer promptly upon final disposition of the matter or representation; and (3) no violation of this Rule shall be deemed to have occurred if the personally disqualified lawyer does not know that the lawyer's firm members have accepted employment with respect to a matter which would require the making and service of such affidavits and if all firm members having knowledge of the accepted employment do not know of the disqualification.
Board of Governors Agenda — Proposed Amendment to Oregon RPC 1.10(c) February 22, 2013 Page 2 The difficulty with the language in current RPC 1.10(c) is its assumption that the personally disqualified lawyer’s former law firm continues to represent the former client. In other words, that the lawyer represented a client while at Firm 1, then moved to Firm 2 which is representing the client’s adversary in the same matter. The rule does not impute the lawyer’s disqualification to everyone in Firm 2 so long as the lawyer is properly screened. Screening is accomplished by serving affidavits on the former firm assuring that adequate measures are in place to avoid the transfer of the client’s confidential information from the lawyer to the members of Firm 2. That screening mechanism doesn’t address the situation where Client A terminates the representation of Firm 1 and is represented by Firm 3. The requirement in the rule that lawyer and Firm 2 provided affidavits to lawyer’s “former firm” does nothing to protect the interests of the client who is no longer represented by Firm 1. The detailed process in subparagraphs (1)-(3) retained the language in former DR 5- 105(I), which had been incorporated into the Oregon Code in 1983. For many years, Oregon was only one of two jurisdictions that permitted screening of a personally disqualified lawyer to avoid “contaminating” the entire new firm. In the nearly 30 years of the rule, there have been no reports that the rule hasn’t served its intended purpose of preventing the screened lawyer from inappropriately sharing information about the former client to other members of the firm. When Oregon migrated to the ABA Model Rules format in 2005, the drafting committee made a conscious choice to retain the long-standing screening process in part because there was no analogous ABA Model Rule. 1 At the same time, the drafting committee incorporated the definition of “screened” as Oregon RPC 1.0(n): 2 “Screened” denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law. The ABA Model Rule and Other Screening Rule The ABA came late to the idea of screening took a fairly complicated approach. It requires timely notice to “any affected former client to enable the former client to ascertain compliance with the provisions of this rule.” The notice must also include • “a description of the screening procedures employed; 1 The ABA adopted a screening rule in 2009 after lengthy and vigorous debate. Since then, a majority of states have followed suit. As discussed herein, however, no state has adopted a rule identical to the ABA Model Rule. 2 This was done to accommodate the permission in RPC 1.18 for a law firm to oppose a prospective client so long as the lawyer consulted by the prospective client is “screened” from the new matter. That rule does not contain any additional requirements.
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February 22, 2013 - Oregon State Bar

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