2007 Issue 1 - New York City Bar Association

More documents

Recommendations

Info

P R O F E S S I O N A L A N D J U D I C I A L E T H I C S This analysis leads to the conclusion that a secondment should be structured so that the seconded lawyer is not associated with the law firm during the secondment. The key to achieving this lies in the meaning of being associated with a law firm. II. Being “Associated” with a Law Firm The test for determining whether a lawyer is associated with a law firm has been addressed in two ethics opinions, ABA Op. 88-356 (1988) and N.Y. State 715 (1999), and in a recent opinion by the United States Court of Appeals for the Second Circuit, Hempstead Video, Inc. v. Village of Valley Stream, 409 F.3d 127 (2d Cir. 2005). As noted in N.Y. State 715 (1999), “[t]he Code does not define the term associated.” The two ethics opinions, both of which addressed whether a temporary lawyer is associated with a law firm, concluded that “[t]he question whether a temporary lawyer is associated with a firm at any time must be determined by a functional analysis of the facts and circumstances involved in the relationship between the temporary lawyer and the firm consistent with the purposes for the Rule.” ABA Op. 88-356 (1988); see also N.Y. State 715 (1999) (association “depends upon the nature of the relationship”). In Hempstead Video, Inc., the Court of Appeals for the Second Circuit addressed whether the conflicts of an attorney acting “of counsel” to a law firm should be imputed to the firm. The Court of Appeals rejected any per se rule, and instead held that the “substance of the relationship” and the “procedures in place” should be examined in determining whether an association exists: [T]he better approach for deciding whether to impute an “of counsel” attorney’s conflict to his firm for purposes of ordering disqualification in a suit in federal court is to examine the substance of the relationship under review and the procedures in place. The closer and broader the affiliation of an “of counsel” attorney with the firm, and the greater the likelihood that operating procedures adopted may permit one to become privy, whether intentionally or unintentionally, to the pertinent client confidences of the other, the more appropriate will be a rebuttable imputation of the conflict of one to the other. Conversely, the more narrowly limited the relationship between the “of counsel” attorney and the firm, and the more secure and effective the isolation of nonshared matters, the less appropriate imputation will be. 409 F.3d at 135. The Court of Appeals concluded on the facts presented T H E R E C O R D 158
F O R M A L O P I N I O N 2 0 0 7 - 2 that conflicts should not be imputed to the law firm because the relationship between the lawyer and the law firm was “narrowly limited,” “attenuated,” and “remote.” Id. at 136. Under these authorities, the touchstones for determining association are the nature of the lawyer’s relationship with the law firm and whether the lawyer has access to the confidences and secrets of the law firm’s clients. Hempstead Video, Inc., 409 F. 3d at 135-36. See also N.Y. State 715 (1999) (when an attorney “has general access to the files of all clients of the firm and regularly participates in discussions of their affairs, then he or she should be deemed ‘associated’ with the firm”). Relatedly, whether an attorney “should be deemed to have access to the confidences and secrets of [the] clients of [a] firm depends upon the circumstances, including whether the firm has a system for restricting access to client files and for restricting informal discussions of client matters.” Id. “The more narrowly limited the relationship between the . . . attorney and the firm, and the more secure and effective the isolation of nonshared matters, the less appropriate imputation will be.” Hempstead Video, 409 F. 3d at 135. The firm may use formal means, including ethical screens, to deny access to those confidences and secrets. Id. at 134 (“Whether an attorney is associated with a firm for purposes of conflict imputation depends in part on the existence and extent of screening between the attorney and the firm”); 5 N.Y. State 715 (1999) (“if the firm has adopted procedures to ensure that the . . . Lawyer is privy only to information about clients he or she actually serves, then, in most cases, the . . . Lawyer should not be deemed to be ‘associated’ with the firm for purposes of vicarious disqualification”) (citing ABA Op. 88-356 for the proposition that an employing firm should “screen each temporary lawyer from all information relating to clients for which the temporary lawyer does no work”). We therefore conclude that when (i) any ongoing relationship between the seconded lawyer and the law firm is narrowly limited, including that the seconded lawyer works solely under the direction of the host organization, and (ii) the seconded lawyer is securely and effectively screened from the confidences and secrets of the law firm’s clients, the seconded lawyer should not be considered associated with the law firm, and conflicts should not be imputed to the law firm. Our conclusion is not altered by the mere fact, for example, that the seconded lawyer (a) is expected to return to the firm at the end of the secondment, (b) retains the 5. See ABCNY 2006-2 for a discussion of the factors that courts analyze in determining whether a screen is effective. 2 0 0 7 V O L. 6 2 , N O. 1 159
Page 1 and 2:
THE RECORD OF THE ASSOCIATION OF TH
Page 3 and 4:
Of Note THE NEW YORK CITY BAR PRESE
Page 5 and 6:
O F N O T E cial Department, were p
Page 7 and 8:
R E C E N T C O M M I T T E E R E P
Page 9 and 10:
Page 11 and 12:
Page 13 and 14:
Page 15 and 16:
Page 17 and 18:
Page 19 and 20:
Page 21 and 22:
P R E V E N T I O N A N D P R O S E
Page 23 and 24:
Page 25 and 26:
Page 27 and 28:
Page 29 and 30:
Page 31 and 32:
Page 33 and 34:
Page 35 and 36:
Page 37 and 38:
Page 39 and 40:
Page 41 and 42:
Page 43 and 44:
Page 45 and 46:
Page 47 and 48:
Page 49 and 50:
Page 51 and 52:
Page 53 and 54:
Page 55 and 56:
Page 57 and 58:
Page 59 and 60:
Page 61 and 62:
Page 63 and 64:
Page 65 and 66:
Page 67 and 68:
Page 69 and 70:
Page 71 and 72:
P A U L R. M C D A N I E L devoted
Page 73 and 74:
P A U L R. M C D A N I E L The Repo
Page 75 and 76:
P A U L R. M C D A N I E L 2. It wo
Page 77 and 78:
P A U L R. M C D A N I E L Territor
Page 79 and 80:
P A U L R. M C D A N I E L the U.S.
Page 81 and 82:
P A U L R. M C D A N I E L An exemp
Page 83 and 84:
P A U L R. M C D A N I E L Conclusi
Page 85 and 86:
P A U L R. M C D A N I E L do busin
Page 87 and 88:
P A U L R. M C D A N I E L mestic i
Page 89 and 90:
Recommendations on the Selection of
Page 91 and 92:
Recommendations on the Selection of
Page 93 and 94:
J U D I C I A L S E L E C T I O N S
Page 95 and 96:
Page 97 and 98:
Page 99 and 100:
Page 101 and 102:
Page 103 and 104:
Page 105 and 106:
Page 107 and 108: J U D I C I A L S E L E C T I O N S
Page 119 and 120: W E B S I T E A C C E S S I B I L I
Page 137 and 138: Formal Opinion 2006-3 Outsourcing L
Page 139 and 140: F O R M A L O P I N I O N 2 0 0 6 -
Page 147 and 148: Formal Opinion 2007-1 Applicability
Page 155 and 156: Formal Opinion 2007-2 Secondment of
Page 157: F O R M A L O P I N I O N 2 0 0 7 -
Page 165 and 166: Report of the Task Force on the Law
Page 167 and 168: L A W Y E R ’ S R O L E I N C O R
Page 209 and 210:
L A W Y E R ’ S R O L E I N C O R
Page 211 and 212:
Page 213 and 214:
Page 215 and 216:
Page 217 and 218:
Page 219 and 220:
Page 221 and 222:
Page 223 and 224:
Page 225:
show all

2007 Issue 1 - New York City Bar Association

Create successful ePaper yourself

Delete template?

Save as template?