February 22, 2013 - Oregon State Bar

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.