if lawyers really couldn't accept any matter that was adverse to any former client, the ability to accept new cases in certain cases, certain subjects, and
can a law firm representing client A "fire" A when B comes to firm for a law suit against client A?
the attorney gained confidences, the presumption is that it was ethically through learning everything you can about your client. this allows the plaintiff to avoid making confidences that would just
in the event the plaintiff doesn't consent, the firm is disqualified.
supporters of screening often contend that objections to screening show skeptism/ cynicism about lawyers' ethics. the major purpose of the old rule was to put some trust back into the system.
then the recession hit, and it was felt that some relaxation of the conflict rules was in order and it was necessary to make lawyer migration from firm to firm easier. that's how we get to rule 1.10(a)(2)
the new provisions apply when
a lawyer moves from firm A to firm B and the question is if firm B can rep a matter that's the same or substantially similar to the matters/clients of the lawyer before he moved from firm A to firm B, and where the interests of the former and current client are materially adverse? YES
the lawyer only needs to follow the screening procedures under 1.10(a)(2)
under the cassis case, there may be an exception
in order to get an idea about what kind of screening procedures are sufficient, see comments 7, 8, 9, 10 on rule 1.10 which are technical requirements that make screening procedures adequate.
rule 1.10(b)
the context in which this arises: 1.10(b) covers situations in which a lawyer leaves a firm and the concern is what the old firm can do after the lawyer has left -- when a lawyer moves from firm A to B taking his clients with him, what can firm A now do? the firm is NOT precluded from representing
a client of the lawyer who left with interests materially adverse to the interests of other clients, assuming/unless
1. the matter on which the client needing new representation wants representation that is the same/ similarly related to how the former lawyer related him
2. any lawyer remaining at firm A has information protected by rules 1.6 and 1.9(c) that is material to the matter
so even if the lawyer takes off, the firm can still represent the client.
almost all imputed conflicts are consentable. the sole exception is that if the conflict is non consentable
under 1.7, then it's non consentable for the firm under 1.10.
when is a situation non consentable?
1. when prohibited by law
2. 1.7(b)(1) conflict rule
substantial relationship test: does the lawyer have information that would be useful in the current case?
hypo. "you don't know anything"
lawyer moves from PRIM law (under 4 years, represented axy-martin
on employment matters and age discrimination) to CCC law firm.
at CCC, is asked to do a case against axy-martin.
1. can the lawyer take this case?
this is the playbook problem -- axy can say that the facts of the
discrimination cases are distinct from sex discrimination but that the
lawyer has learned details about the axy-martin employment, labor,
salaries, past misdeeds, settlement, and business positions with are useful to discovery. is this
a basis for finding the age and sex cases are related?
the playbook problem of litigation strategy does expand the reach of the substanitally related test very far. however, details with respect to
specific employment practices of the company are substantially related
potentially.
2. can CCC take this case?
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