HIGHLIGHTS:

  • The District of Columbia has joined the increasing number of U.S. jurisdictions that allow screening of lateral lawyers to avoid imputation of conflicts of interest that arise based on those lawyers' former client relationships.
  • As with many screening rules, D.C.'s new rule requires notice of the screen to be sent to the affected former client. D.C., however, has created an exception to this notice requirement when the affected current client requests that such notice not be sent, or at least be delayed, in order to maintain confidentiality as to the fact and subject matter of that client's representation.

The District of Columbia Court of Appeals, in Order No. M-242-12 of Oct. 8, has adopted amendments to RPC 1.10 that will allow firms who hire lateral lawyers to screen those lawyers in order to prevent imputation of their former-client conflicts. Subsection (b)(3) of the new rule indicates that such conflicts will not be imputed to the firm if:

  1. the disqualified lawyer is screened from the matter and is apportioned no part of the fee therefrom; and
  2. written notice is promptly given by the firm and the lawyer to any affected former client of the screened lawyer, such notice to include a description of the screening procedures employed and a statement of compliance with these Rules.

This screening provision is similar to the screening provision in American Bar Association (ABA) Model Rule 1.10 and provisions adopted in many other jurisdictions. The court, however, took a novel step by also creating an exception to the notice requirement articulated in subsection (b)(3)(B), namely:

If a client of the firm requests in writing that the fact and subject matter of a representation subject to paragraph (b) not be disclosed by submitting the written notice referred to in subparagraph (b)(3)(B), such notice shall be prepared concurrently with undertaking the representation and filed with Bar Counsel under seal. If at any time thereafter the fact and subject matter of the representation are disclosed to the public or become a part of the public record, the written notice previously prepared shall be promptly submitted as required by subparagraph (b)(3)(B).

An Appropriate Confidentiality Balance

This exception resolves the tension between the duty of confidentiality that flows to the current client and the duty to provide notice of the screen that flows to the former client. A screening notice generally need not contain much detail about the current client's representation, but it will need to mention the fact of the representation and usually also the subject of the representation. Although such information is often not secret or otherwise sensitive, there are times when revealing such information could be harmful to the current client. This exception strikes an appropriate balance by providing that screening notice requirements do not trump confidentiality requirements in such situations.

If timely notice is filed under seal with District of Columbia Bar Counsel, the screened lawyer and that lawyer's firm may delay notifying the screened lawyer's former client until the matter becomes public or becomes part of the public record (for example, until the screened lawyer's firm files a complaint against the screened lawyer's former client). If the matter never becomes public or part of the public record, no disclosure to the screened lawyer's former client need be made at all.