To view this page ensure that Adobe Flash Player version 11.1.0 or greater is installed.

BAR COUNSEL Avoiding Conflicts and Retaining Clients Don’t Forget to Shut the Screen Door firm. RPC 1.10(a) and RPC 1.8(k); see also RPC 1.0(d) (defining firm). Self-interest conflicts and conflicts based on family rela- tionships between lawyers are not imputed to other members of a firm as long as the conflict “does not present a significant risk of materially limiting the representation of the client by the remaining lawyers of the firm.” RPC 1.10(a); see generally OSB Formal Ethics Op No 2005-120 (rev 2015) (discussing screening). A correctly employed screen may pre- serve a client representation that other- wise might be lost because of an imputed conflict. iStock No “One Size Fits All” Screens S creening for conflicts is an important tool in every lawyer’s ethical tool- box. After all, a screen may offer a firm a chance to preserve a long-standing client relationship or to bring in new busi- ness, despite the existence of a conflict. But in the press of day-to-day practice, how screens work — and when they can resolve conflicts — may seem a mystery. This article outlines when screens can and cannot be used to resolve conflicts, the key features of an effective screen and what can happen when screens fail. The Specter of Imputed Conflicts While there are numerous advantages to working in a firm, including the abil- ity to freely share client confidences with colleagues, this close relationship means that in most instances one lawyer’s con- flicts are imputed to all of the other law- yers in a firm. 1 Generally, all current and former client conflicts are imputed among members of a At its core, a screen (also known as an “ethical wall”) is a device that enables lawyers to prevent conflicts from being imputed among the members of a firm. In theory, a screen can prevent a lawyer who is personally disqualified from inadver- tently obtaining or sharing confidential information with other members of a firm or otherwise influencing the firm’s repre- sentation of the client. What type of screen a firm must im- pose depends on the circumstances. Rule 1.0(n) defines screened to mean “the isola- tion of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reason- ably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law.” The rule makes clear that the screen must happen in time to prevent the per- sonally disqualified lawyer from partici- pating in the matter or obtaining infor- mation related to the representation of the client. The screen must be in place as soon as practicable after a lawyer knows or By Amber Hollister should have known through the exercise of reasonable diligence that the conflict exists. RPC 1.0(h) (defining knowledge in the context of conflicts analysis); see also Comment (10) to ABA Model Rule 1.0. The definition of screened does not, how- ever, outline specific procedures that a firm must put in place. 2 Instead, lawyers are left to determine what is “reasonably adequate under the circumstances” in any given matter. Thus, the rule recognizes that what screening method is “reason- able” may change depending on what is at stake for the client and the nature of the representation. At the very least, the disqualified lawyer should explicitly acknowledge the duty not to communicate about the matter with others in the firm and should agree to take steps to avoid gain- ing confidential information about the screened matter. Similarly, other lawyers in the firm who are working on the matter should be informed that the disqualified lawyer has been screened and instructed to take appropriate precautions to protect client confidences. See Comment (9) to ABA Model Rule 1.0. Depending on the circumstances, it may be necessary to do more to protect client confidentiality. The firm should consider what steps are necessary to ef- fectuate a screen in light of the scope of the representation, the nature of the rep- resentation, the type of confidential infor- mation in the firm’s possession, the risks of disclosure, and the number of lawyers involved in the representation. For in- stance, Comment (9) to the ABA Model Rule 1.0 suggests the following steps may also be appropriate: • Asking the disqualified lawyer to agree in writing to “avoid any communica- tion with other firm personnel and any JUNE 2016 • OREGON STATE BAR BULLETIN 9