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Changing Firms - Screening - Part II

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Changing Firms - Screening - Part I

New York

State courts - probably not.  Rules 1.9(b) & 1.10(c).  The New York Court of Appeals adopted a rule similar to the Restatement (see discussion at the top of this page). The rule seems to follow Kassis v. Teacher’s Ins. & Annuity Ass’n, 695 N.Y.S.2d 515 (N.Y. 1999).  It does not permit screening if the moving lawyer had significant information. It mandates screening if the moving lawyer has information that is not significant, something Model Rule 1.9(b) does not require.  The New York rules are new; it remains to be seen how they will be interpreted in light of KassisSee also Casita, L.P. v. MapleWood Equity Partners (Offshore) Ltd., 825 N.Y.S.2d (N.Y. App. 2006) ; R.M. Buck Construction Corp. v. Village of Sherburne, 740 N.Y.S.2d 154 (N.Y. App. 2002); Alicea v. Bencivenga, 704 N.Y.S.2d 578 (N.Y. App. Div. 2000), Cummin v. Cummin, 695 N.Y.S.2d 346 (N.Y. App. 1999); 2006); Casita, LP v. Maplewood Equity Partners (Offshore) Ltd., 815 N.Y.S.2d 493(N.Y. Sup. Ct. 2006); Trusco Bank v. Melino, 625 N.Y.S.2d 803 (S. Ct. 1995).  While somewhat dated, N.Y. State Op. 720 (1999) provides helpful guidance on how a law firm ought to go about clearing conflicts when bringing in a lawyer from another firm.

Yeomans v. Gasket, 2017 WL 3080108 (N.Y. App. Div. July 20, 2017). Child custody dispute between H and W. In an earlier matter involving the same child Lawyer A represented H. Now, Lawyer A works part time for Lawyer B, who is representing W in this case. H moved to disqualify A and B. The trial court granted the motion. In this opinion the appellate court affirmed. Although B attempted to screen A from this case, unfortunately A had unwittingly signed a bill of particulars for W. Moreover, the court felt that under the circumstances, given the "small" and "informal" nature of B's firm, the screen would not work here.

Rodeo Family Enterprises, LLC v. Matte, 2011 N.Y. Misc. LEXIS 2286 (N.Y. S. Ct. May 12, 2011), followed Kassis, law firm disqualified.

No disqualification because moving lawyer knew nothing about the case when at the prior firm.  Telesco v. Bateau, 749 N.Y.S.2d 811 (N.Y. App. 2002); Nimkoff v. Nimkoff, 797 N.Y.S.2d 3 (N.Y. App. 2005). 

In Abatement & Decontamination Services, Inc. v. Consolidated Edison Co. of N.Y., Inc., QDS:22703171 (reported in the September 25, 2000, NYLJ), a judge in the New York Supreme Court refused to disqualify a law firm because the lawyer in question ultimately never joined the law firm.  The court was, however, highly critical of the firm because it negotiated with the lawyer while the lawyer was actively handling a law suit against the firm.

Former Government Lawyer.  Essex Equity Holdings USA, LLC v. Lehman Bros., Inc., 2010 N.Y. Misc. LEXIS 1567 (N.Y. Misc. June 10, 2010).  This case involves an arbitration between private parties.  Law Firm represented one side in the arbitration.  Law Firm brought in a lateral ("Lateral") from the U.S. Attorney's office.  While at the government, Lateral worked on matters that directly related to the arbitration, although the U.S. was not a party to the arbitration.  Because of Lateral the other side sought disqualification of Law Firm.  Because the arbitration panel was not authorized to rule on disqualification, the moving parties resorted to this court.  Enforcing New York's new Rule 1.11 according to its terms, the court in this opinion ruled that Law Firm should be disqualified.  First, the court ruled that the notices to Law Firm personnel about Lateral's screen were, essentially, late and vague.  Second, the court ruled that Law Firm's notice to the U.S. Attorney's office regarding hiring Lateral and the screen, two months after hiring Lateral was not "prompt," within the meaning of the rule.  The court did observe that the small size of the new firm should not, alone, be the basis for invalidating a screen as long as all concerned were “diligent and careful.”

Former Government Lawyer.  In re Est. of Coleman, 2008 N.Y. Misc. LEXIS 6933 (N.Y. Misc. Dec. 4, 2008).  This is a very New York-specific decision.  Lawyer was, for several years, a high-ranking lawyer in the law department of the Surrogates Court (this court).  He left the court in December 2007, to join the law firm for the Petitioner ("Law Firm").  Because of the court employment, the Respondent moved to disqualify Law Firm in this case.  In this opinion the Surrogate granted the motion.  Although Law Firm made an attempt to screen Lawyer from this case, the court noted that Law Firm only had three lawyers, that these lawyers were separated by a few walls and doors, and that Law Firm could show no way to separate the files for this case physically from Lawyer.

Former Judge.  Manditch v. Manditch, 2012 N.Y. App. Div. LEXIS 984 (N.Y. App. Div. Feb. 7, 2012).  Divorce case.  The judge that had presided over the case joined the law firm for the defendant.  The plaintiff moved to disqualify the law firm.  The trial court denied the motion.  In this opinion the Appellate Division reversed because the defendant's firm had not complied with the notice provision of N.Y. Rule 1.12(d).

In Axon v. Axon, No. 53650/09 (Kings Co.) (N.Y. S. Ct. May 24, 2010), a case not involving a lateral lawyer but rather a situation involving a something akin to a current-client conflict the court ordered a screen.

For a discussion of screening in New York, see James M. Altman, Conflict-of-Interest Issues Can Derail Job Offers, New York Law Journal, February 16, 2001.

Line Trust Corp. Ltd. v. Lichtenstein, No. 601951/2009 (N.Y. Sup. Ct. Nov. 17, 2011).  This case is not about screening a lateral in the classic sense, but it is about a failed screen.  Law Firm advised Group 1 on a financing.  This case arises out of that financing.  Bank and Group one are co-defendants.  Law Firm is now doing work for Bank on this case.  Group 1 moved to disqualify Law Firm in this case.  In this opinion the court granted the motion.  The court first said that Group 1 and Bank would most likely become adverse in this case.  Law Firm claimed to have erected a screen between the lawyers working for Group 1 and Bank. The court expressed doubts about screens in general.  The court also noted flaws in Law Firm's screen.  The court referred to the fact that a lawyer on the Bank team had accessed a Group 1 document in the firm's document management system, printed it out, and then destroyed it.  Also, a legal assistant, now on the Bank team, had earlier worked on the Group 1 team cite-checking a memorandum for one hour and reviewing five Group 1 electronic documents for twenty minutes.

Non-Lawyer at "Old" Firm, Lawyer at "New Firm." 
N.Y. Op. 905 (Jan. 2012).  A non-lawyer worked on Matter at Law Firm A, later was admitted to the Bar, and then joined Law Firm B, which was on the other side of of Matter.  The committee said in this opinion that while the new lawyer may not work on Matter, the new lawyer does not prevent Law Firm B from continuing as long as the new lawyer is screened from Matter.  Recall that non-consensual screens for lawyers, who were lawyers at their prior firms, are viewed negatively in New York state courts, but are more accepted in federal courts.

Sharifi-Nistanak v. Coccia, 2014 N.Y. App. Div. LEXIS 5242 (N.Y. App. Div. July 16, 2014). Auto accident case. Law Firm D represented the defendant. Law Firm P represented the plaintiffs. While at Firm D Lawyer filed a couple of pro forma documents for the defendant. Lawyer then moved to Firm P. The defendant moved to disqualify Firm P. The trial court denied the motion. In this opinion the Appellate Division affirmed. Lawyer established to the court’s satisfaction that Lawyer had learned nothing about the defendant while at Firm D, and that Firm P had screened Lawyer from this case, in line with Kassis v Teacher's Ins. & Annuity Assn., 717 N.E.2d 674 (N.Y. 1999).

Dietrich v. Dietrich, 2016 WL 484310 (N.Y. App. Div. February 9, 2016). This case does not involve a lawyer changing firms but does involve screening. H sued W on grounds that are unclear from this opinion. W moved to disqualify H’s lawyer (Kothari). The trial court granted the motion. In this opinion the appellate court reversed. W has always been represented by the Cohen Clair law firm. Kothari is co-counsel with Lans, of Cohen Clair, on a matter unrelated to this one. Lans’ office at Cohen Clair is next to Leshnower’s. Leshnower is W’s lawyer in this case. Lans and Leshnower share an assistant. In reversing the disqualification, the appellate court said W’s “concerns can be easily addressed.” This would include ensuring that W and Kothari are never at Cohen Clair’s offices at the same time and that Leshnower’s assistant be cautioned not to share W’s information with Lans.

Federal courts - friendlier to screens.  Hempstead Video, Inc. v. Village of Valley Stream, 409 F.3d 127 (2d Cir. 2005) (court, in effect, approved a screen where a law firm was adverse to the current client of an of counsel); Maricultura Del Norte, S. De R.L. De C.V. v. Worldbusiness Capital, Inc., 2015 WL 1062167 (S.D.N.Y. March 6, 2015) (court approved screen in former client context; no lateral involved); Arista Records LLC v. Lime Group LLC, 2011 U.S. Dist. LEXIS 17434 (S.D.N.Y. Feb. 22, 2011) (following Hempstead; recognized large vs. small firms); Filippi v. Elmont Union Free School Dist. Bd. of Educ., 2010 U.S. Dist. 66352 (E.D.N.Y. July 2, 2010) (firm too small, but current client situation); Reilly v. Computer Associates Long-Term Disability Plan, 423 F. Supp. 2d 5 (E.D.N.Y. 2006) (friendly to screens); Eugenia VI Venture Holdings, Ltd. v. Glaser, 2005 U.S. Dist. LEXIS 28126 (S.D.N.Y. Nov. 15, 2005) (approved screen); Panebianco v. First Unum Life Ins. Co., 2005 U.S. Dist. LEXIS 7314 (S.D.N.Y. April 27, 2005) (screen inadequate); United States v. Salvagno, 5:02-CR-51 N.D.N.Y. date unknown) (according to the March 7, 2003, edition of Law.com, court held that screen will not work in two-lawyer office); Young v. Central Square School District,  213 F. Supp. 2d 202 (S.D.N.Y. 2002) (new firm too small and screen had not been put in place); Mitchell v. Metropolitan Life Ins. Co., 2002 U.S. Dist. LEXIS 4675 (S.D.N.Y. 2002) (office too small, screen set up two months after lawyer arrived, and lawyer worked closely with two lawyers on the case - court implied that screening might work if circumstances were otherwise); G.D. Searle & Co. v. Nutrapharm, Inc., 1999 U.S. Dist. LEXIS 5963 (S.D.N.Y. 1999); Schwed v. General Electric Co., 990 F. Supp. 113 (N.D.N.Y. 1998); Bank Brussels Lambert v. Chase Manhattan Bank, N.A., 1996 U.S. Dist. LEXIS 1624 (S.D.N.Y. Feb. 15, 1996) (approved screen); Decora Inc. v. DW Wallcovering, 899 F. Supp. 132 (S.D.N.Y. 1995) (new firm too small, moving lawyer worked closely with lawyer on the case in the new firm, and screen set up too late).

Victorinox AG v. B&F Sys., Inc., 2017 WL 4149288 (2d Cir. Sept. 19, 2017). Trademark case. Law Firm represents Plaintiff, which was victorious in the trial court. Among other things, Defendants claim that Law Firm should have been disqualified because for about one year, while this case was pending, Law Firm represented a defendant on another matter. Law Firm has withdrawn from that representation. The trial court denied the motion to disqualify. In this opinion the appellate court affirmed. Evidently, no screen had been erected, but the court noted that neither trial team at Law Firm had exchanged information.

Arista Records LLC v. Lime Group LLC, 2011 U.S. Dist. LEXIS 17434 (S.D.N.Y. Feb. 22, 2011).  In an opinion confirming that screening is alive and well in the Second Circuit, the court denied a motion to disqualify.  The court relied on Hempstead Video, Inc. v. Village of Valley Stream, 409 F.3d 132 (2d Cir. 2005).  The opinion was fact-intensive.  The court said that the screen was "imperfect;" however, the court found that "there is no real risk that the trial will be tainted."  The lateral lawyer involved insisted that he never shared information about the case with his new firm.  One interesting factor was that the new firm did a computer run on the lawyers who had accessed the documents in this case and found that the lateral was not one of them.  Another point worth mentioning is that the court seemed to embrace the notion that the risk of taint is greater in smaller firms than in larger firms (the new firm had 600 lawyers).

American Int'l Group, Inc. v. Bank of Am. Corp., 2011 U.S. Dist. LEXIS 141012 (S.D.N.Y. Dec. 6, 2011).  This suit involves the sale of sub-prime mortgages.  Law Firm No. 2 represents the plaintiffs.  Lawyer joined Law Firm No. 2 after working at Law Firm No. 1.  While at No. 1 Lawyer worked on matters involving the sale of sub-prime mortgages for two of the defendants in this case.  After joining Law Firm No. 2 Lawyer did minimal drafting work on several pleadings in this case.  When Law Firm No.2 was advised of Lawyer's conflict, it set up a screen.  Lawyer later left Law Firm No. 2.  The defendants moved to disqualify Law Firm No. 2.  In this opinion the court denied the motion.  Among other factors, the court noted the following: Law Firm No. 2 set up a screen immediately upon learning of the conflict; Lawyer did minimal work on this case at Law Firm No. 2; various affidavits established that Lawyer was in no position to give confidential information to Law Firm No. 2 and that he did not; and Law Firm No. 2's document management system showed no breach of the files in this case by Lawyer.

In Chinese Automobile Distributors of Amer. LLC v. Bricklin, 2008 U.S. Dist. LEXIS 106179 (S.D.N.Y. Jan. 8, 2009), the firm in question did not set up a screen until the other party complained, about three months after the lawyer in question arrived.  The court said nothing doing.

Wrubel v. John Hancock Life Ins. Co., 2012 U.S. Dist. LEXIS 83574 (E.D.N.Y. June 15, 2012).  Suit by trust for life insurance proceeds.  While at Law Firm A, Lawyer did have some limited contact with the trust, but was never formally retained.  Lawyer moved to Law Firm B.  Law Firm B is representing the defendant.  The trust moved to disqualify Law Firm B.  In this opinion the court denied the motion, in part because Law Firm B screened Lawyer when it learned of the prior relationship.

Excellent discussion of Kassis.  Papyrus Technology Corp. v. New York Stock Exchange, Inc., 325 F. Supp. 2d 270 (S.D.N.Y. 2004). Papyrus, represented by Frommer Lawrence & Haug (“FLH”), sued NYSE for patent infringement in early 2004.  Before filing the suit, FLH circulated a memorandum to all lawyers asking about potential conflicts.  In response to the memorandum, an associate, Tedd Van Buskirk (“TVB”), informed a partner that he had, until 2001, been an associate in the twelve-person intellectual property department at Milbank, Tweed, Hadley & McCloy.  TVB said that he remembered discussions about a dispute between Papyrus and NYSE, but added that he did not work on that or any other NYSE matter and could not recall learning any confidential information about the matter.  As a result of this disclosure FLH did not assign TVB to this case.  After the case was filed, Milbank confronted FLH with the TVB relationship and showed FLH redacted E-mails about the case in which TVB was one of the addressees.  Milbank also pointed out that TVB had attended weekly meetings of the Milbank intellectual property group, where the matter surely had been discussed.  Lastly, Milbank pointed out that TVB had access to all Papyrus/NYSE documents in Milbank’s document management system.  As a result of Milbank’s disclosures, FLH erected a formal screen between TVB and the case.  NYSE moved to disqualify FLH.  TVB denied knowing anything about the matter.  The court denied the motion, doing an analysis under the leading case in New York on screening, Kassis v. Teacher’s Ins. & Annuity Ass’n., 717 N.E.2d 674 (N.Y. 1999).  Kassis essentially holds that a screen will work if the moving lawyer has information that is unlikely to be significant.  In footnote 9 the court notes that this is the test under Sec. 124 of the Restatement.  At several points the court noted that Milbank’s document management system had the capability to identify what lawyers accessed the Papyrus/NYSE case documents.  However, Milbank did not come forward with any information about who had accessed the documents, presumably because there was no indication that TVB had.  [Note: this case is a clinic on conducting a disqualification proceeding involving a migratory lawyer and screening.  Milbank correctly raised the E-mails, the weekly departmental meetings, and access to its document management system.  On the other hand, the court was impressed by the logic of TVB’s insistence that he knew nothing about the case and Milbank’s failure to come forward with evidence that TVB had accessed relevant documents in its document management system.  We favor screening in these cases and believe New York’s rule is too anti-screening.  However, the court in this case correctly analyzed New York law and came to a sensible solution.]

Crudele v. New York City Police Dep't, 2001 U.S. Dist. LEXIS 13779 (S.D.N.Y. 2001), involves a lawyer moving from public to private employment.  New York DR 9-101(b) allows screening for former public employees.  However, the court disqualified a law firm that had erected a screen, because the law firm was too small (15 lawyers). But, in In re Air Cargo Shipping Servs. Antitrust Litig., 2016 WL 727171 (E.D.N.Y. Feb. 23, 2016), the court found a screen worked even though the firm was "small."

Energy Intell. Grp. v. Cowen & Co., 2016 WL 3920355 (S.D.N.Y. July 15, 2016). Court found screen inadequate because the law firm was small (19 lawyers) and screen erected three weeks late.

Rella v. North Atlantic Marine, LTD., 2004 U.S. Dist. LEXIS 22309 (S.D.N.Y. Nov. 3, 2004).  Lawyer moved from Law Firm A to Law Firm B while there was a matter pending between the two firms.  Lawyer worked on the matter while at A.  A’s client moved to disqualify Lawyer and Firm B.  The court granted the motion.  A principal feature of this case is the ineptitude with which Firm B opposed the motion.  A key finding by the court is that Firm B made no credible showing that it had screened Lawyer from the case in question.

Lott v. Morgan Stanley Dean Witter & Co. Long-Term Disability Plan, 2004 U.S. Dist. LEXIS 25682 (S.D.N.Y. Dec. 23, 2004).  Lawyer changing firms with case between them.  The court disqualified the law firm because it had not set up a screen – the implication being that a screen might have worked.  Battagliola v. Nat. Life Ins. Co., 2005 U.S. Dist. LEXIS 650 (S.D.N.Y. Jan. 19, 2005), involved the same law firm and and opposing parties as Lott.  And, the court disqualified the migratory lawyer.  However, the court declined to disqualify the new law firm provided the firm set up a screen.  Here is another case in which the court said that a screen might have saved the firm, Edwards v. Gould Paper Corp., 352 F. Supp. 2d 376 (E.D.N.Y. 2005).

King v. Fox, 2005 U.S. Dist. LEXIS 5146 (S.D.N.Y. March 31, 2005).  The court held that a lawyer may represent a client in suing a law firm in which the lawyer had formerly been an employee (associate).  The court held that this is different from representing a client in a suit against another party, which is being represented by the lawyer’s former law firm.  The court held that the former associate owed no fiduciary duty to his former employer, the defendant law firm.  There was no discussion of whether the lawyer had confidences from his former law firm that would have been relevant to this case.

United States v. Hasarafally, 2008 U.S. App. LEXIS 12504 (2d Cir. June 12, 2008).  This is one of 18 criminal cases presided over by Attorney General Mukasey while he was a district judge.  In this briefest possible discussion of screening the court held that Mukasey’s recusal of himself from these cases was adequate to allow those under him to continue prosecuting them.

Intelli-Check, Inc. v. TriCom Card Tech., Inc., 2008 U.S. Dist. 84435 (E.D.N.Y. Oct. 21, 2008).  Patent infringement case.  Lawyer worked on this case while at the plaintiff's law firm, Gibbons DelDeo.  Lawyer moved to Kelley Drye, which at that time had no role in this case.  Two years after moving to Kelley Drye, the firm merged with Collier Shannon, which was representing the defendants in this case.  Shortly after the merger, the merged firm, known as Kelley Drye, created a screen around Lawyer.  Nevertheless, the plaintiff moved to disqualify Kelley Drye.  In this opinion the court denied the motion.  The court found the screen to be adequate.  The court was influenced by the fact that Lawyer was in Kelley Drye's New York City office, while the litigation team representing the defendants was based in D.C.  The plaintiff also tried to show that Lawyer's work on the case while at Gibbons DelDeo was "appreciable," citing the importance of that concept in Kassis v. Teacher's Ins. & Annuity Ass'n, 717 N.E.2d 674 (N.Y. 1999), a strongly anti-screening decision.  The court in this opinion said it preferred not to pay attention to such labels.

Frame-Tunney v. J.P. Morgan Securities, Inc., 2011 U.S. Dist. LEXIS 113482 (S.D.N.Y. Sept. 28, 2011).  Plaintiff, represented by Law Firm, is suing Defendant, Plaintiff's former employer, for discrimination.  While an employee, Plaintiff had a conference with Lawyer, an in-house lawyer with Defendant, concerning her employment issues.  Lawyer left Defendant and joined Law Firm.  Defendant moved to disqualify Law Firm.  In this opinion the court denied the motion, noting that Lawyer recalled nothing of the meeting and that Law Firm had set up a screen.

Stratton v. Wallace, 2012 U.S. Dist. LEXIS 108444 (W.D.N.Y. Aug. 2, 2012).  Truck/automobile accident case.  Law Firm A represents the plaintiff.  Law Firm B represents the defendants.  Lawyer moved from Firm A to Firm B.  While at Firm A Lawyer had substantial involvement in this case.  Firm B created a screen.  Nevertheless, the court in this fact-intensive opinion disqualified Firm B.  The court seemed most influenced by the fact that the partner at Firm B in charge of this case ("Partner") was head of the litigation group, of which Lawyer was a member, and Partner and Lawyer were in the same office.

Heyliger v. Collins, 2014 U.S. Dist. LEXIS 30391 (N.D.N.Y. March 10, 2014). Plaintiff sued Newspaper, and eight individual associated with Newspaper, for defamation. Lawyer appeared for all nine. Lawyer formerly was a state prosecutor who had prosecuted Plaintiff several times. Plaintiff moved to disqualify Lawyer and his law firm. In this opinion the magistrate judge granted the motion. The judge found that the earlier prosecutions were sufficiently related to the defamation claims to fall within New York’s version of MR 1.11. The court also held that all three lawyers in Lawyer’s firm should be disqualified because the firm was too small for a screen to work.

Non-lawyers - state court - maybeMulhern v. Calder, 763 N.Y.S.2d 741 (N.Y. Misc. 2003).  A secretary/paralegal changed firms.  At her former firm she worked on “scores of files.”  One of those files was this case, in which her new firm represents the plaintiff.  The court rejected a less lenient approach taken in Glover Bottled Gas Corp. v. Circle M. Beverage Barn, Inc., 514 N.Y.S.2d 440 (N.Y. App. 1987), and ruled that because the new firm had set up a screen, the defendant’s motion to disqualify the plaintiff’s firm should be denied.  The court said the key issue was whether non-lawyers should be subject to the strict rule applied to lawyers by Kassis v. Teacher’s Ins. & Annuity Ass’n , 695 N.Y.S.2d 515 (N.Y. 1999), and ruled that they should not.  Also, see NYC Medical & Neurodiagnostic, P.C. v. Republic Western Ins. Co., 748 N.Y.S. 840 (N.Y. Civ. Ct. 2004).  N.Y. Op. 774 (2004) is generally favorable to screening nonlawyers. USA Recycling v. Baldwin Endico Realty Assocs. Inc., No. 350816-2013 (N.Y. Sup. Ct. July 2, 2015) (solo lawyer, no screen, disqualified).

Paralegal. Raffaeli v. Raffaeli, 2016 WL 3079942 (N.Y. Sup. Ct. June 1, 2016). Law Firm P represents the plaintiff in this matrimonial case. Law Firm D represents the defendant. While at Firm P, Paralegal billed 536 hours on this case. In January 2016 Paralegal moved to Firm D. Firm D, consisting of three people, set up a screen. The plaintiff moved to disqualify Firm D. In this opinion the court granted the motion. The court did not discuss the efficacy of the screen. Basically, the court felt that the defendant’s position did not pass the “straight-face test” (our words).

Paralegal. USA Recycling, Inc. v. Baldwin Endico Realty Assocs., 2017 WL 758210 (N.Y. App. Div. Feb. 28, 2017). Paralegal formerly “worked for the executor of the estate of Defendant’s sole shareholder.” Plaintiff’s law firm hired Paralegal. Defendant moved to disqualify Plaintiff’s law firm. The trial court granted the motion, noting that Paralegal “worked on matters directly related to this litigation” and learned much of Defendant’s affairs, but was not properly screened from this case.

Non-lawyers - federal court.  Dela Raba v. Suozzi, 2006 U.S. Dist. LEXIS 92813 (E.D.N.Y. Nov. 17, 2006) .  Law Firm A is co-counsel with Law Firm B in representing the plaintiffs in this § 1983 case against a county and a county official.  The complaint was filed in March 2006.  Greene, not a lawyer, was an employee of the county, working on employment matters, until he was terminated in December 2005.  In January 2006 Firm A hired Greene as a part-time employee to work on governmental relations matters, more or less as a “marketing consultant.”  Because of this hiring, the defendants moved to disqualify Firms A and B.  Following the filing of the motion Firm A terminated Greene.  In this opinion the magistrate judge denied the motion.  The evidence was pretty clear that while with the county Greene had been privy to sensitive information about the decision-making process that led to this suit.  However, the uncontroverted evidence was that Greene never discussed this case with anyone at either Firm A or Firm B.  The court said that a formal screen was not necessary and was satisfied that, in the court’s words, “a de facto screen was operating . . . by happenstance.”

The court in SEC v. Ryan, 2010 U.S. Dist. LEXIS 112217 (N.D.N.Y. Oct. 20, 2010), said that a screen would work for a paralegal.

Law Clerk; Rule 1.12. Am. Tax Funding, LLC v. City of Schenectady, 2014 WL 6804297 (N.D.N.Y. Dec. 2, 2014). Lawyer served as law clerk in this court. While a clerk, Lawyer attended a settlement conference in this case in the presence of the magistrate judge who wrote this opinion. Lawyer left the court and joined Law Firm. After that, one of the parties, because its lawyer retired, hired Law Firm to handle this case. Because of the presence of Lawyer at Law Firm, the other party moved to disqualify Law Firm. In this opinion the magistrate judge denied the motion. The court found that Law Firm erected a timely and effective screen pursuant to New York Rule 1.12. Of particular interest was the court’s discussion of New York cases considering whether smaller firms should be held to a different standard when evaluating the efficacy of screens. Here, the court held that Law Firm, which had twenty lawyers, did pass muster.

North Carolina

Lawyers - Probably. Rule 1.10(c).

Byrd v. Hopson, 2004 U.S. App. LEXIS 16369 (4th Cir. Aug. 9, 2004).  The plaintiff’s lawyer (“A”) witnessed some of the events that gave rise to plaintiff’s causes of action.  The trial court ordered the Lawyer A off the case but allowed Lawyer A’s firm to continue for the plaintiff.  The court ordered Lawyer A’s firm to set up an “ethical wall,” separating A from the other lawyers handling the case.  The appellate court affirmed.  [Note: this is one of those rare opinions recognizing a screen in a context other than that of a lawyer changing firms.  However, ordering the screen makes no sense.  If the lawyer is going to be a witness, the lawyers handling the case ought to be able to prepare him just like any other witness.]

Non-Lawyers - Probably.  N.C. Op. 176 (1994).

Law Student N.C. Op. 2010-12 (Jan. 21, 2011).  This opinion provides that it is appropriate for a law firm to inquire of new lawyers what they worked on when clerking at another firm, saying that the duty to avoid conflicts provides an exception to the duty of confidentiality.  The opinion says that a law student's conflict is not imputed to other lawyers in the firm.  However, the opinion states that it would be appropriate for the firm to erect a screen.

North Dakota

Lawyers - Probably. Rule 1.10(b). But, the lateral's information must be "unlikely to be significant," and there is a notice requirement.

Non-Lawyers - Probably. In re Johnston, 2015 WL 7738096 (N.D. Dec. 1, 2015).

Ohio

Lawyers - Probably.  Rule 1.10.

NexGen Energy Partners v. Reflecting Blue Techs., Inc., 2017 WL 3023520 (Ohio App. July 17, 2017). Lawyer worked on this case for Defendant. He played an important role and learned a lot about Defendant. Lawyer wound up in the firm representing Plaintiff. He was screened. The trial court granted Defendant's motion to disqualify Plaintiff's law firm. In this opinion the appellate court affirmed. The court noted that Ohio's version of Model Rule 1.10 superseded Kala v. Aluminum Smelting & Refining Co., Inc., 688 N.E.2d 258 (Ohio 1998), and that a non-consensual screen will not work where the screened lawyer had "substantial responsibility" for the matter on the other side.

Litigation Mgm't, Inc. v. Bourgeois, 2009 Ohio App. LEXIS 1913 (Ohio App. May 14, 2009).  This is an action by the plaintiff, represented by Baker & Hostetler ("B&H"), against several former employees for theft of trade secrets and related claims.  The defendants are represented by Ogletree Deakins ("Ogletree").  In 2006, a first-year associate at B&H billed 14.6 hours researching the causes of action for this case.  Subsequently, the associate, joined Ogletree.  The plaintiff moved to disqualify Ogletree.  The lawyer in charge of the case at B&H testified that she gave the associate substantial information about the case.  The associate testified that she remembered none of that information.  However, she also testified that she did, upon joining Ogletree, discuss this case with a partner involved in the case.  The trial court granted the motion.  In this opinion the appellate court affirmed.  The court based its analysis on Ohio Rule 1.10 and discussed that rule's screening provisions.  First the court held that the trial court did not abuse its discretion in holding that the associate had "substantial responsibility" for this case while at B&H.  Thus, under Ohio Rule 1.10 a non-consenual screen would not work.  Second, the court held that, in any event, there was no evidence that Ogletree even attempted to set up a screen.

Medical Ctr. at Eliz. Pl., LLC v. Premier Health Partners, 2013 U.S. Dist. LEXIS 104339 (S.D. Ohio July 25, 2013).  In a one-off situation the court approved a screen in a former-client (not a lateral) situation.  The opinion is unsatisfactory in that it involves three Ohio hospitals and an Ohio law firm.  Moreover, the court's Local Rules adopt by reference the Ohio Rules of Professional Conduct.  Yet, the court ignored the Ohio rule on screening and Ohio cases on screening.  Instead, the court cited the Restatement and cases from other jurisdictions.  One interesting statement appeared in the court's brief discussion of screening in small firms: in Footnote 2, citing no authority, the court said, "there is no per se rule that a small firm cannot erect an effective screen."

Sixth Circuit applies ABA Model Rules and disqualifies law firm.  National Union Fire Ins. Co. v. Alticor, Inc., 466 F.3d 456 (6th Cir. 2006), modified, 472 F.3d 436 (6th Cir. 2007) .

Non-Lawyers - Probably.  Green v. Toledo Hospital, 94 Ohio St. 3d 480 (Ohio  2002); Latson v. Blanchard, 1998 Ohio App. LEXIS 4619 (Ohio App. Sept. 30, 1998).

Oklahoma

Lawyers - Probably not. Rule 1.10(b).

Leslie v. Fielden, 2011 U.S. Dist. LEXIS 47017 (N.D. Okla. May 2, 2011).  Lawyer changed firms.  Lawyer's new firm, in this case, is representing a party ("A") against another party ("B"), whom Lawyer represented at his old firm.  Party B moved to disqualify Lawyer's new firm.  In this opinion the court granted the motion.  The court noted that the Oklahoma's version of MR 1.10 does not provide for non-consensual screening, while MR 1.10 does.  The court said it did not need to decide which rule applied, because the new firm, in setting up a screen, did not comply with the notice and certification requirements of the Model Rule.

Non-Lawyers - ProbablyHayes v. Central States Orthopedic Specialists, Inc., 51 P.3d 562 (Okla. 2002).

Oregon

Lawyers - Probably. Rule 1.10 .  See Portland Gen. Elec. Co. v. Duncan, Weinberg, Miller, & Pembroke, 986 P.2d 35 (Or. App. 1999).

Non-lawyers - Probably.  Ore. Op. 2005-44 (2005).

Pennsylvania

Lawyers - Yes. Rules 1.10(b) (1) and (2). See Pa. Op. 2005-140 (2005) and Philadelphia Bar Ops. 2006-1 (March 2006) & 91-18 (1991); Dworkin v. General Motors Corp., 906 F. Supp. 273 (E.D. Pa. 1995).  Also see James v. Teleflex, Inc., 1999 U.S. Dist. LEXIS 1961 (E.D. Pa. 1999), in which the court disqualified a firm because it had not complied with all the requirements of Pennsylvania's screening rule. Phila. Op. 2014-1 (April 2014) refers to the use of “effective ethical screens.”

In Royal Bank of Pa. v. Walnut Square Partners, 2006 Phila. Ct. Com. Pl. LEXIS 147 (Phila. Com. Pl. 2006), the court disallowed a screen because the notice provisions of Pa. Rule 1.10(b)(2) were not complied with. 

Holcombe v. Quest Diagnostics, Inc., 2009 U.S. Dist. LEXIS 114764 (E.D. Pa. Dec. 8, 2009).  In this medical malpractice case Law Firm A, a five-lawyer firm, represented the plaintiff, and Law Firm B represented a defendant.  Lawyer, while at Firm B did most of the work on this case and learned much confidential information.  Lawyer moved to Firm A and was immediately subject to an orally-directed screen.  However, Firm A failed to comply with the notification provisions of Pennsylvania Rule 1.10(b)(2).  The defendant moved to disqualify Firm A, and in this opinion, the district judge denied the motion.  The court did, however, prescribe a strengthened, written screening protocol and appointed a master to supervise the screen, at Firm A's expense.

Norfolk Southern Ry. Co. v. Reading Blue Mountain & Northern RR. Co., 397 F. Supp. 2d 551 (M.D. Pa. 2005).  The plaintiff is a very large railroad.  The defendant is a very small railroad.  After this case was pending for about two years, one of the principal lawyers for the defendant changed firms, moving to the plaintiff’s firm.  The plaintiff’s firm received consent from the defendant’s firm, provided it set up a screen.  When the president of the defendant learned of the consent, he objected.  The defendant moved to disqualify the plaintiff’s firm.  Notwithstanding that the court’s local rules adopt the Pennsylvania Rules – which allow screening – the court granted the motion.  First, the court said that the fact that the screen does not purport to deny the moving lawyer a part of the fee from this case was grounds, without more, to grant the motion.  Another problem was the part of the screening memorandum that said no lawyer in the firm should discuss the case with the moving lawyer.  The court said the provision should have prevented any lawyer from discussing this case anywhere near the moving lawyer, let alone discussing it with him.  In that connection the court noted that the plaintiff’s law firm only had ten lawyers all located in the same office.  Last, the court said that the screening memorandum should have provided that any lawyer who violated it could be terminated.  [Note: the court did not mention whether the failure of the defendant’s law firm to get the consent of the president of the defendant influenced his decision.  Also, the court did not mention whether the size of the plaintiff railroad relative to the size of the defendant made a difference.  But, both of those factors coupled with the size of the plaintiff’s firm and proximity of its lawyers to each other make the court’s ruling not completely off the wall.]

Rule 1.10(b). Buschmeier v. G&G Investments, Inc., 2007 U.S. Dist. LEXIS 85444 (W.D. Pa. Nov. 19, 2007).  Plaintiff is seeking to execute on a judgment against Defendant.  She subpoenaed entities and persons related to Defendant (the “Related Parties”) to locate Defendant’s assets.  Related Parties moved to disqualify Plaintiff’s law firm (“Law Firm”), and in this opinion the court denied the motion.  This action was filed in 2006.  The basis for the motion was that from 2000 until 2003 Lawyer was at Law Firm and handled several discrete matters for Related Parties.  When he left Law Firm, Lawyer took the Related Parties and the physical files with him.  The bases for the court’s denial were that (1) those matters were not substantially related to this matter, and (2) no lawyer remaining at Law Firm had material information about the Related Parties.  Thus, the court applied Pennsylvania’s version of Model Rule 1.10(b) according to its terms.  In passing, the court noted that Law Firm had “sealed off” Related Parties’ electronic files from all lawyers at Law Firm, but the court did not indicate the importance of the firm having done so.

No Substantial Relationship, but Court Orders Screen.  Liko AB v. Rise Lifts, Inc., 2008 U.S. Dist. LEXIS 58033 (E.D. Pa. July 31, 2008).  This opinion contains an unremarkable substantial relationship analysis.  One interesting tidbit is that in denying a motion to disqualify the court ordered the law firm in question to screen from “this litigation” lawyers who had previously done work for the former client.

Graham Co. v. Griffing, 2009 U.S. Dist. LEXIS 103222 (E.D. Pa. Nov. 3, 2009).  Law Firm represents the plaintiff in this trade-mark-related case.  Several years earlier Law Firm had represented defendant's predecessor in another trademark matter.  In this opinion the court denied the defendant's motion to disqualify Law Firm.  In a fact-specific analysis the court found that the two matters were not substantially related.  The court also relied, in part, upon the fact that Law Firm had screened the lawyers working on the earlier matter from this matter.  [Note: this is one of those rarest of cases in which a court recognized a non-consensual screen in a matter not involving a lawyer changing firms.]

Non-Lawyers - Probably.  Philadelphia Bar Ops. 98-75 (1998), 80-77 & 80-119 (1980).

Puerto Rico

Lawyers - Probably.  Model Rule 1.10(c) (D.P.R. Local Rule 83.5(a) adopts the ABA Model Rules.)

Southwire Co. v. Ramallo Bros. Printing, Inc., 2009 U.S. Dist. LEXIS 116631 (D.P.R. Dec. 15, 2009).  Firm A represented the plaintiff in this case for a time.  For part of that time, Lawyer worked on the case while at Firm A.  Lawyer left Firm A in 2005. Three years later, in 2008, Lawyer was hired by Firm B and an ethical screen was adopted. In 2009, plaintiff moved to disqualify. After a hearing and while the motion was pending, Lawyer left Firm B.  In an earlier opinion at 2009 U.S. LEXIS 96892 (D.P.R. Oct. 19, 2009), the court denied the motion.  There was a dispute about whether Firm B adequately screened Lawyer from this case.  However, the court held that, because Lawyer had left Firm B, the screening provisions of Model Rule 1.10(a) were no longer relevant and relied upon Model Rule 1.10(b).  The court held that because there was no showing that Lawyer imparted any information about this case while at Firm B, there was no basis remaining for disqualification.  In this opinion the court denied rehearing, but changed its reasoning.  First, the court noted that the ABA had approved screening in early 2009, by amending Rule 1.10(b).  Then the court looked at the screen and found it adequate.  As to the notice provisions in new ABA Model Rule 1.10, which were not complied with here, the court said that those provisions were not added until after Lawyer joined Firm B.  (The district court's local rules incorporate the ABA Model Rules.)  The court denied a request for a certification of interlocutory appeal under 28 U.S.C. § 1292(b) at Southwire Co. v. Ramallo Bros. Printing, Inc., 2009 U.S. Dist. LEXIS 124396 (D.P.R. Feb. 1, 2010).

Minana-Rodriguez v. Citigroup Global Mkts., 2011 U.S. Dist. LEXIS 47479 (D.P.R. May 3, 2011).  Routine former-client/substantial relationship analysis.  One item of note is that the magistrate judge ordered the law firm in question to screen the lawyers who had handled the earlier matter from the lawyers handling this case.

Rhode Island

Lawyers - Probably. Rule 1.10(c).  RBS Citizens, N.A. v. Avaya, Inc., 2014 U.S. Dist. LEXIS 90457 (D.R.I. June 25, 2014) and Mearthane Prod. Corp. v. Lexmark Int'l., Inc., C.A. No. 00-245 ML (D.R.I. 2001).

Non-lawyers – Probably.  See, also R.I. Ops. 2002-02, 97-09, 92-12, and 85-08.  Fedora v. Werber, 2013 R.I. LEXIS 164 (R.I. Dec. 20, 2013).  Medical malpractice case.  Paralegal worked on the case for Defendant.  Paralegal wound up at Plaintiff’s law firm, which erected a screen.  The firm neglected to provide “prompt notice” of the screen to Defendant as provided by Rhode Island’s version of MR 1.10.  The trial court refused to disqualify the firm, but ordered the firm to pay sanctions for violating the notice provision.  In a procedural twist, the supreme court vacated the sanctions award.  The court noted that the trial judge had applied Rule 1.10 to a non-lawyer and also noted that the appellant did not raise that issue in this appeal.

South Carolina

Lawyers - Probably not. Rules 1.9(b) and 1.10(a). S.C. Op. 92-23 (1992).  H&C Corp., Inc. v. Puka Creations, LLC, 2013 U.S. Dist. LEXIS 147174 (D.S.C. Oct. 11, 2013).

Non-Lawyers - Probably.  S.C. Ops. 29 (1993) & 12 (1991).

South Dakota

Lawyers - Probably not. Rules 1.9(b) and 1.10(a).

Tennessee

Lawyers - Probably.  Tennessee's version of Model Rule 1.10 at (c) & (d) approves screening.  It adds a relatively benign condition that screening will not work if the migratory lawyer was "substantially involved" in the matter in question.  Thus, a lawyer who had taken a couple of depositions and argued a motion or two, may be okay, while the lawyer in charge of the case may not be.  The history of screening in Tennessee is tempestuous.  Both the Tennessee Bar in Op. 89-F-118 (1989) and the Sixth Circuit in Manning v. Waring, Cox, James, Sklar & Allen, 849 F.2d 222 (6th Cir. 1988) had approved a liberal screening rule. However, Clinard v. Blackwood, 1999 Tenn. App. LEXIS 729 (Tenn. App. 1999) muddied things. The appellate court applied a much harsher, anti-screening rule similar to that contained in § 124 of the Restatement and adopted by the New York of Appeals in Kassis v. Teacher’s Ins. & Annuity Ass’n, 695 N.Y.S.2d 515 (1999).  In Clinard v. Blackwood, 46 S.W.3d 177 (Tenn. May 18, 2001) the Tennessee Supreme Court seemingly reversed field and approved the more liberal screening rule, citing Tenn. Op. 89-F-118 (1989).  But, then the court executed a double reverse by ruling that the appearance-of-impropriety test then present in Tennessee's version of the old ABA Model Code should also have been applied by the lower courts.  The court held that their failing to do so was an abuse of discretion and required the Supreme Court to find that there was an appearance of impropriety requiring the firm's disqualification.  Hopefully, the new rule will bring some stability to the situation.

O’Rourke v. O’Rourke, 2007 Tenn. App. LEXIS 375 (Tenn. App. June 15, 2007).  In this post-divorce litigation Lawyer A (“A”) represented Husband (“H”), and Lawyer B (“B”) represented Wife (“W”).  While this case was pending Associate worked for A.  She left A and went to work for B.  H then moved to disqualify B.  The trial court granted the motion.  In this opinion, the appellate court affirmed.  Under Tennessee’s unique Rule 1.10(d)(1), the court found that Associate was “substantially involved” in this case while with A and that, therefore, a screen would not protect B from being disqualified.  There was conflicting evidence about how much Associate actually worked on the case while at A, so the court resolved the conflict by finding that her involvement was substantial.

Sixth Circuit applies ethics rules and disqualifies law firm.  National Union Fire Ins. Co. v. Alticor, Inc., 466 F.3d 456 (6th Cir. 2006), modified, 472 F.3d 436 (6th Cir. 2007).

Longway v. Applied Geographics, Inc., 2013 U.S. Dist. LEXIS 113174 (M.D. Tenn. Aug. 12, 2013).  Law Firm represents Defendant.  For a five-month period Lawyer P at Law Firm was Plaintiff's local counsel.  Lawyer then left Law Firm.  During this five-month period this case was stayed because of a related proceeding in Colorado.  Also during this period Lawyer D, representing Defendant, joined Law Firm.  Because of this overlap, Plaintiff moved to disqualify Defendant's lawyer and Law Firm.  In this opinion the magistrate judge denied the motion.  In applying Tennessee Rule 1.10(b) (same as MR 1.10(b)) the court noted that (1) Lawyers P and D had never discussed the case, (2) Lawyer P, being only local counsel, had never discussed the case with Plaintiff, (3) and no one remains at Law Firm with any knowledge of the Plaintiff.

Non-Lawyers - Probably, Tenn. Op. 2003-F-147 (2003).  The Commission held that the rule for non-lawyers should be the same as that for lawyers.  It remains to be seen how the "substantially involved" language in the lawyer rule will be applied to non-lawyers.

Texas

Lawyers - Probably not. Rule 1.09(b). Phoenix Founders, Inc. v. Marshall, 887 S.W.2d 831 (Tex. 1994); Henderson v. Floyd, 891 S.W.2d 252 (Tex. 1995).  As to use of work product by successor to the disqualified firm, see In Re Kenneth George - In Re Epic Holdings, Inc., 28 S.W.3d 511 (Tex. 2000).

COC Services, Ltd.  v. CompUSA, Inc., 2002 Tex. App. LEXIS 5687 (Tex. App. August 6, 2002).  While John Vernon was a shareholder at Strasburger & Price, he and several other lawyers from the firm met with COC about possibly representing COC on franchise matters.  Vernon spent several hours with COC.  While the firm ultimately was hired, Vernon did no work on the account.  COC eventually sued CompUSA, and after the court took away a $90 million jury verdict, COC appealed.  While this appeal was pending, Vernon moved from Strasburger to Jenkins & Gilchrist (“J&G”), CompUSA’s counsel in the appeal (and the earlier trial).  COC moved to disqualify J&G.  The appellate court ruled that J&G should stay in the appeal even though the information learned by Vernon at the first COC meetings related to the appeal.  The court felt that the potential harm to COC was greatly outweighed by the harm to CompUSA should J&G be disqualified.  The court did suggest that the subject could come up again if the case were to be retried.  The Texas rules have no counterpart to Model Rule 1.9(b), which deals with lawyers changing firms.  Nor, did the court discuss whether a screen had been erected around Vernon at J&G, thereby implicitly ducking the screening issue altogether.  The court did note that Vernon was found not to have conveyed COC information to the J&G lawyers working on the case, and that Vernon was not working on the case.

In re ProEducation Int'l Inc., 2009 U.S. App. LEXIS 23906 (5th Cir. Oct. 30, 2009).  While at Law Firm, Lawyer A represented MindPrint.  Lawyer B was at Law Firm while A represented MindPrint, but never worked on the matter or knew anything about it.  Lawyer B left Law Firm and subsequently appeared in a bankruptcy proceeding on behalf of Doctor.  It is not clear from the opinion how Doctor was adverse to MindPrint, but he must have been because MindPrint moved to disqualify Lawyer B.  The bankruptcy judge granted the motion, and the district judge affirmed.  In this opinion the Fifth Circuit reversed.  The court noted that the result was dictated by Texas Rule 1.09, Model Rule 1.9, and various sections of the Restatement.  The court also cited extensively Amon Burton, Migratory Lawyers and Imputed Conflicts of Interest, 16 Rev. Litig. 665 (1997).

Nat’l Oilwell Varco, L.P. v. Omron Oilfield & Marine, Inc., 2014 U.S. Dist. LEXIS 160548 (W.D. Tex. Nov. 14, 2014). This is a patent infringement case, involving patent ’142, filed by Plaintiff, National Oilwell (“NOV”), against Defendant, Omron. This opinion involves Omron’s motion to disqualify NOV’s law firm (“Raley Firm”) because of Raley Firm’s employment of Lawyer, Wunder. Wunder formerly worked at the Osha Firm during the time the Osha Firm represented Omron. While at the Osha Firm Wunder actively worked on another infringement case against Omron and learned much about Omron’s personnel and business. Wunder also tangentially was involved in the preparation of a non-infringement opinion, involving patent ’142, in anticipation of a possible claim by NOV against Omron. About the time NOV filed this suit, Wunder left the Osha Firm. Several months later Wunder joined the Raley Firm, which represents NOV in this case. The Raley Firm erected a screen between Wunder and this case. In this opinion the court denied the motion to disqualify the Raley Firm. The analysis is lengthy and involves a comparison of Fifth Circuit decisions, the ABA Model Rules, and the Texas Rules. Basically, the court said that although slavish adherence to the Texas Rules might dictate disqualification, the Fifth Circuit decisions recognize that certain presumptions can be rebutted while the Texas Rules might not. One result is that the Raley Firm’s screen worked in this case, while it might not have worked under Texas Rules. Moreover, in the eyes of the court, the equities in this case overwhelmingly militate against disqualification.

Litman v. Litman, 2013 Tex. App. LEXIS 6059 (Tex. App. May 15, 2013).  Divorce case.  Associate worked at the firm representing W, billing 90 minutes to case.  Associate then moved to H's firm.  W moved to disqualify H's firm.  The trial court denied the motion.  In this opinion the appellate court affirmed, finding that Associate's work on W's case was just too insignificant to count for disqualification.  There was also a seven-month delay in bringing the motion.

Tex. Center Op. 607 recognizes the need of prospective laterals and prospective new law firms to share client information to avoid conflict problems.

In re Bell, 2013 Tex. App. LEXIS 13201 (Tex. App. Oct. 24, 2013).  Caution: one-paragraph opinion.  Law Firm P. represents the plaintiff.  Law Firm D represents the defendant.  Associate leaves D to join P.  While at D Associate "never participated" in this case.  The defendant moved to disqualify P.  The trial court denied the motion.  In this opinion the appellate court, finding no abuse of discretion, affirmed (denied mandamus).

Non-Lawyers - ProbablyIn re Mitcham, 133 S.W.3d 274 (Tex. 2004); In re TXU US Holdings Co., 110 S.W.3d (Tex. App. 2002).

In re Guaranty Ins. Servs., Inc., 2011 Tex. LEXIS 507 (Tex. July 1, 2011).  In this opinion the court approved the screen of a non-lawyer even though he worked on the same case in both firms.  He only worked on the case a few hours at the first firm and did not remember doing so.  The court also noted that what he might have learned at the first firm would not be material to the matter given the remaining issues to be litigated as of the time of this decision.

In re Saexploration, Inc., 2012 Tex. App. LEXIS 9983 (Tex. App. Dec. 4, 2012).  Companies A and B, competitors, explored a possible combination.  Pursuant to that effort, the parties signed a non-disclosure and non-compete agreement.  Lawyer worked for A at that time.  After the negotiations terminated, Lawyer moved from A to B, to be COO, CFO, and GC.  In this case A sued B to enforce the aforesaid agreement.  A moved to disqualify Lawyer.  The trial court entered an order basically requiring B to screen Lawyer from this case.  B sought mandamus in the appellate court.  In this opinion the appellate court denied mandamus.  The court said that Lawyer should be treated as a non-lawyer, and that Texas ethics rules would not apply.  However, the court said that the screening order was appropriate.

Law Clerk.  OneBeacon Ins. Co. v. T. Wade Welch & Assoc., 2012 U.S. Dist. LEXIS 14663 (S.D. Tex. Feb. 6, 2012).  In this opinion the court denied a motion to disqualify solely on a fact-specific substantial-relationship analysis.  One interesting piece of dicta was that where the moving lawyer was only a law clerk at the "old" firm, for disqualification purposes he would be treated as a lawyer at both the "old" firm as well as the "new" firm.  Thus, the need to do the substantial-relationship analysis.

Law Clerk. Tex. Op. 644 (Revised 2016). This opinion holds that a non-consensual screen will prevent a migratory law clerk, who becomes a lawyer, from conflicting the entire new firm. 

Older Non-Lawyer CasesIn re Columbia Valley Healthcare System, L.P., 2010 Tex. LEXIS 617 (Tex. Aug. 27, 2010) (but, there must be formal screen and no actual contact with the matter at the new firm); In Re American Home Products Corp., 985 S.W.2d 68 (Tex. 1998); Arzate v. Hayes, 915 S.W.2d 616 (Tex. 1996); Grant v. Thirteenth Court of Appeals, 888 S.W.2d 466 (Tex. 1994); Phoenix Founders, Inc. v. Marshall, 887 S.W.2d 831 (Tex. 1994); Tex. Op. 472 (1991); In re Guaranty Ins. Services, Inc., 2010 Tex. App. LEXIS 2753 (Tex. App. April 16, 2010) (but, disqualified because paralegal wound up working on the case); In re Columbia Valley Healthcare Sys., L.P., 2008 Tex. App. LEXIS 8396 (Tex. App. Nov. 6, 2008); In re Barnes, 2003 Tex. App. LEXIS 3086 (Tex. App. April 10, 2003); In re Relators Bell Helicopter Textron, Inc., 87 S.W.3d 139 (Tex. App. 2002).

Former Judge.  In re Brittingham, 2010 Tex. App. LEXIS 2889 (Tex. App. April 21, 2010).  This case is an ongoing series of proceedings involving a probate estate.  Lawyer was formerly an appellate court judge who had served on panels reviewing appeals from this estate.  After joining Law Firm, Lawyer appeared for several parties adverse to the estate administrator in the probate court.  The administrator moved to disqualify Lawyer and Law Firm.  In this opinion the appellate court granted the motion.  First, the court held that an appeal from a probate proceeding is the same "matter" as the probate proceeding, within the meaning of Texas' version of Model Rule 1.12.  Second, the court held that because Lawyer was not screened from this matter (she appeared in this matter, after all), Law Firm should be disqualified. Parallel Networks, LLC v. Abercrombie & Fitch Co., No. 6:10-CV-111 (E.D. Tex. April 1, 2016). Judge handling case joined Law Firm, which was representing Defendant. Plaintiff moved to disqualify Law Firm because it did not notify Plaintiff of Judge’s hiring for three weeks, MR 1.12 (Tex. Rule 1.11). In this opinion the court held that under the circumstances the three-week delay did not violate the “spirit of Rule 1.12.”

Former Mediator; No Written Notice.  Moore v. Altra Energy Tech., Inc., 2009 Tex. App. LEXIS 6789 (Tex. App. Aug. 27, 2009).  Lawyer had served as a mediator in this case.  He then joined the law firm for the appellant ("Law Firm").  The appellees moved in this appeal proceeding to disqualify Law Firm.  In this opinion the court granted the motion.  First, the court held that the matter fell under Texas' version of MR 1.11.  As to Law Firm's claim that it had screened Lawyer from this matter, the court found that Law Firm had not complied with the written notice requirement ("promptly") of the rule.

Law review.  Burton, Migratory Lawyers and Imputed Conflicts of Interest, 16 Rev. Lit. 665 (1997).

Utah

Lawyers - Probably. Rule 1.10(c). See SLC Limited v. Bradford Group West, Inc., 999 F.2d 464 (10th Cir. 1993).

Lutron Electronics Co., Inc. v. Crestron Electronics, Inc., 2010 U.S. Dist. LEXIS 120864 (D. Utah Nov. 12, 2010).  Lawyer worked at Law Firm A until 2007.  While at Law Firm A Lawyer billed some 500 hours reviewing documents of Company A, the plaintiff in this case.  The documents concerned patents, which are at issue in this case.  When Lawyer left Law Firm A in 2007, he joined Law Firm B.  Law Firm A, on behalf of the plaintiff, filed this action against Company B in 2009.  Law Firm C initially represented Company B in this case.  In early 2010 Company B brought Law Firm B into this case.  When Law Firm B appeared, Law Firm A informed Law Firm B, that because Lawyer was at Law Firm B, Law Firm B had a conflict and should withdraw.  As soon as Law Firm B learned of Lawyer's earlier work at Law Firm A, Law Firm B created a screen and refused to withdraw.  Company A moved to disqualify Law Firm B.  In this opinion the court denied the motion.  The court said that Utah ethics rules applied, and Utah has a screening provision at Rule 1.10(c).  The court also noted that Law Firm B could not have known of its conflict until notified by Law Firm A, and that immediately setting up a screen was soon enough.  Additionally, the court noted that Lawyer had no recollection of the contents of the documents he reviewed at Law Firm A and had never discussed the plaintiff or the patents in question with anyone at Law Firm B.  The court rejected the "inflexible disqualification" approach and, instead, applied a "functional analysis."

C&J Investments, LLC v. Nat'l Center for Constitutional Studies, 2009 U.S. Dist. LEXIS 74084 (D. Utah Aug. 20, 2009).  Law Firm represents the plaintiff.  In 1987, while with Law Firm, Lawyer gave the defendant some tax advice.  Lawyer left Law Firm in 1998.  No one currently at Law Firm has any recollection of Lawyer's work for the defendant.  The defendant moved to disqualify Law Firm.  In this opinion the court denied the motion, applying Utah Rule 1.10(b) (same as MR 1.10(b)) according to its terms.

The Joint Sugar House, LLC v. I4 Solutions, 2016 WL 2344220 (D. Utah May 3, 2016). In this copyright infringement case Law Firm represents Plaintiff. Lawyers 1 & 2 previously worked at Law Firm. While there they assisted Defendants on a contract issue. In this case Defendants moved to disqualify Law Firm. In this opinion the magistrate judge denied the motion. The court noted that no lawyer with relevant knowledge about Defendants remains at Law Firm. In essence the judge applied Utah’s version of MR 1.10(b) according to its terms.

Vermont

Lawyers - Probably not. Rule 1.9(b) and 1.10(a). See Vt. Ops. 2005-1 (undated) & 87-7 (undated).

Non-Lawyers - Probably.  Vt. Ops. 97-9 (undated) & 92-12 (undated).  But, see Vt. Op. 85-8 (undated).

Virgin Islands

ProbablyTerritorial courts and the federal District of Virgin Islands have adopted the ABA Model Rules, including the screening provisions of MR 1.10.  Also, see Vecc, Inc. v. Bank of Nova Scotia, 222 F. Supp. 2d 717 (D.V.I. 2002), which seemed to approve of screening, but which seemed to put more weight on other aspects of the case. In Denero v. Palm Horizons Mgm't, Inc., 2015 WL 1004672 (D.V.I. March 4, 2015), the court approved a screen based upon a firm's compliance with MR 1.10.

Yhan v. Hovensa, L.L.C., 2012 U.S. Dist. LEXIS 161593 (D.V.I. Nov. 12, 2012).  Employment discrimination case.  A lawyer in the plaintiffs' law firm ("Lawyer") worked at the defendant's law firm for three years until November 2011.  While at the defendant's firm Lawyer worked on employment related cases for the defendant, but not this case.  The defendant moved to disqualify the plaintiffs' law firm.  The magistrate judge granted the motion, implicitly adopting the playbook approach to the substantial relationship test.  The magistrate judge also rejected the plaintiffs' claim that Lawyer had been screened at her new firm, because the firm had not complied with the notice provision of MR 1.10.  In this opinion the district judge vacated the magistrate judge's order and remanded the case to the magistrate judge to develop more fully the evidentiary basis for the magistrate judge's finding of substantial relationship.  The district judge did not address the screening issue.

 De La Cruz v. V.I. Water & Power Auth., 2012 U.S. Dist. LEXIS 64404 (D.V.I. May 8, 2012).  Plaintiff was injured when his paint roller came in contact with Defendant's power line.  Plaintiff, represented by Law Firm, sued Defendant for failing to protect the line, etc.  While this case was pending Law Firm hired Lawyer.  Lawyer had worked on a different case for Defendant while at his previous firm, but that case did involve an injury from exposure to a power line.  Lawyer was not screened immediately when Law Firm hired him.  Defendant moved to disqualify Law Firm.  The magistrate judge granted the motion, and in this opinion the district judge affirmed.

Government Law - "Personally and Substantially" Test.  Richards v. Lewis, 2005 U.S. Dist. LEXIS 23933 (D.V.I. Oct. 14, 2005).  Lawyer was for a time assistant attorney general for the Virgin Islands.  While there she worked on the preliminary aspects of an unlawful transfer claim by a government employee.  After Lawyer left government work, she went into private practice.  She then began representing the very same employee in this case, which arises out of the aforementioned transfer.  The government moved to disqualify Lawyer, but the court held that, under ABA Model Rule 1.11, Lawyer had not participated “personally and substantially” on the case while with the government.  She had done no investigation and filed only perfunctory papers.  The court also held that Model Rule 1.9, which would have precluded this representation, does not cover former government lawyers.

Mendez v. Puerto Rican Int'l Cos., 2013 U.S. Dist. LEXIS 84024 (D.V.I. June 13, 2013).  Employment discrimination case.  Lawyer started with the defendant's law firm (Law Firm A).  Lawyer did not work on this case, although he did access several documents regarding this case in Firm A's document management system.  Lawyer then worked as a contract lawyer at the plaintiff's law firm (Law Firm B), and has since left Firm B.  While at Firm B Lawyer had nothing to do with this case.  In this opinion the court denied a motion to disqualify Firm B, holding that the circumstances of Lawyer's employment at Firm B amounted to an effective screen.  The court also ruled that the presence of another contract lawyer at Firm B, who had previously clerked for the judge on this case, but who did not work on this case, did not require Firm B's disqualification because she was not "associated" with Firm B for purposes of Rule 1.12.

Non-Lawyers - MaybeLamb v. Pralex Corp., 333 F. Supp. 2d 361 (D.V.I. 2004).

Virginia

Lawyers - Probably not. Rule 1.9(b). See Va. Op. 1428 (1992).  In a slightly different context the court, in Tessier v. Plastic Surgery Specialists, Inc., 731 F. Supp. 724 (E.D. Va. 1990), said:

While the information may have been conveyed solely to Mr. Knight, this court has viewed with great skepticism the efficacy of a "Chinese Wall" which, in theory, prevents the communication of confidential information between members of the same firm.

Non-Lawyers - Probably.  Va. Ops. 1832 (2007), 1800 (2004) & 745 (1985).

Washington

Lawyers - Yes. Rule 1.10(e) and cmts [9], [10], & [12].

Non-Lawyers - Probably.  Rule 1.10, cmt. [11].  Daines v. Alcatel. S.A., 194 F.R.D. 678 (E.D. Wash. 2000).

West Virginia

Lawyers - Probably not. Rule 1.10(b). HealthNet, Inc. v. Health Net, Inc., 289 F. Supp. 2d 755 (S.D. W. Va. 2003); Roberts & Schaefer Co. v. San-Con, Inc., 898 F. Supp. 356 (S.D. W. Va. 1995).

CSX Transp., Inc. v. Gilkison, 2006 U.S. Dist. LEXIS 81019 (N.D. W. Va. Nov. 3, 2006).  Lawyer changed firms.  There are several matters pending between the two firms.  At his new firm Lawyer was screened from any matters of which he had any knowledge from his old firm.  The former client moved to disqualify the new firm.  The court, in an unremarkable substantial-relationship analysis, ruled that the new firm should be disqualified and that the screen would not prevent disqualification.  Here is a portion of the court’s comments on screening:

The practice of "screening" or erecting a "Chinese wall" within a law firm to prevent the sharing of confidential information, however, has not been approved by the United States Court of Appeals for the Fourth Circuit nor by the Supreme Court of Appeals of West Virginia. Although screening methods have been considered by the American Bar Association, in 2000, the Ethics Commission ultimately rejected an amendment to the Model Rules of Professional Conduct, upon which the West Virginia ethics rules are modeled, that would have allowed screening procedures to avoid the imputation of some conflicts.

State ex rel. Cosenza v. Hill, 607 S.E.2d 811(W. Va. 2004).  Richard Wolf worked at the law firm representing the defendant in this case, but he did not work on this case and claims he learned nothing about it while with the defendant’s firm.  Wolf then moved to the firm representing the plaintiff and was put to work on this case.  The defendant moved to disqualify Wolf and the plaintiff’s entire law firm.  The trial court granted the motion and the West Virginia Supreme Court of Appeals affirmed.  The key fact for the latter court was that the office that Wolf previously occupied had only six lawyers, four of whom were working on this case.  The court also noted that the lawyers in this small office were a collegial group and often discussed each other’s cases.  The court, therefore, held that knowledge of the case should be imputed to Wolf, notwithstanding his claim that he learned nothing about it.  The court also noted that West Virginia courts still apply the “appearance of impropriety” test and that it should be applied here.

Burgess-Lester v. Ford Motor Co., 2008 U.S. Dist. LEXIS 83268 (N.D. W. Va. Oct. 17, 2008).  In this fairly typical "firm-switching" case, the court discussed extensively the law regarding screening in West Virginia, the Fourth Circuit, and in the U.S., generally.  It concluded that screening had not yet been adopted in West Virginia or the Fourth Circuit.  It also mentioned that the ABA had rejected screening when it considered the Ethics 2000 Commission report recommending screening.  Nevertheless, the court, in this opinion, rejected a screen because the court was not confident that the screen erected by the firm in question was effective.  The court was particularly concerned that the lawyer in question did not know the details of the screen.

Wisconsin

Lawyers - Probably.  Rule 1.10(a). The rule recognizes a screen where the moving lawyer performed only “minor and isolated” services on the matter in question at her prior firm.

Silicon Graphics, Inc. v. ATI Technologies, Inc., 2010 U.S. Dist. LEXIS 107057 (W.D. Wis. Oct. 5, 2010).  Lawyer worked at the law firm representing the plaintiff in this case ("Firm 1") and did work on the case.  Lawyer left Firm 1 and went to another firm ("Firm 2,") which is not involved in this case.  Ultimately, Lawyer joined the firm representing the defendants in this case ("Firm 3").  Firm 3 notified Firm 1 of this and erected a screen.  The plaintiff moved to disqualify Firm 3.  In this opinion the court denied the motion.  In a terrific analysis the judge (Hon. Barbara Crabb, sitting in Madison, Wisconsin) determined that the issues were governed by federal decisions, not the Wisconsin ethics rules.  She went on to discuss why the result would have been the same had she followed Wisconsin Rule 1.10.  The Wisconsin rule provides for a screen provided the lawyer in question had performed only "minor and isolated services" at the lawyer's first firm, which is how she characterized Lawyer's work at Firm 1.  [Note: anyone with any interest in screening should not fail to read this opinion.  We have only scratched the surface with the discussion above.]

Former Government Lawyers.  Tucker v. George, 2008 U.S. Dist. LEXIS 58424 (W.D. Wis. Aug. 1, 2008).  In this opinion the court disqualified a law firm because it had not instituted a screen for two former government lawyers until the time that the other side questioned whether the firm should be disqualified.

Also, see Nelson v. Green Builders, Inc., 823 F. Supp. 1439 (E.D. Wis. 1993).

Wyoming

Lawyers - Probably not. Rule 1.10(b).

United States International Trade Commission

In re Certain Electronic Imaging Devices, Inv. No. 337-TA-726 (U.S. Int'l Trade Comm'n Sept.1, 2010).  ALJ ordered a screen in a context other than a lawyer changing firms.

United States Court of Appeals for Veterans Claims

Sperry v. Shinseki, 2010 U.S. App. Vet. Claims LEXIS 1335 (Vet. Claims App. July 27, 2010).  This appeal involves a claim for lawyers fees under the federal Equal Access to Justice Act.  The Secretary opposed the claim because one of the lawyers for the claimant had a conflict of interest.  That lawyer, six years prior to this representation, had been a VA lawyer and had signed a ministerial document regarding this claimant.  The court first held that Model Rule 1.11, not Model Rule 1.9, applied.  Second, the court held that the ministerial nature of the lawyer's act while at the VA meant the lawyer had not violated Rule 1.11.  (Under Rule 4(a) of the Rules of Admission and Practice of the United States Court of Appeals for Veterans’ Claims, the ABA Model Rules govern the conduct of lawyers before that court.)

United States Court of International Trade

Non-Lawyers - MaybeMakita Corp. v. United States, 17 Ct. Int’l Trade 240 (1993).

United States Court of Appeals for the Federal Circuit

Valeant Int'l Bermuda v. Watson Pharms., Inc., 2012 U.S. App. LEXIS 26473 (Fed. Cir. Dec. 26, 2012).  This is an appeal by the defendant in a patent infringement case.  Law Firm A appeared for the defendant in the appeal.  Because of two lawyers that had joined Law Firm A, the plaintiff moved to disqualify Firm A.  While at a prior law firm, the two lawyers had worked on the plaintiff's matters including relating to the patents at issue in this case.  Law Firm A claimed it had implemented a screen.  In this opinion the Federal Circuit granted the motion.  First, the court held that the applicable ethics rules are those of the trial court (S.D. Fla.), which had adopted the Florida Rules.  Florida's version of rule 1.10 does not allow for screens.

In re DataTreasury Corp
., No. 2010-M928 (Fed. Cir. Aug. 5, 2010.  At one time Lawyer briefly represented Plaintiff regarding the licensing of a patent.  The representation was so brief, Lawyer did not bill time to it.  Lawyer then joined Law Firm.  Law Firm is representing Defendant in this patent infringement action.  The subject patent is the patent involved in Lawyer's earlier work for Plaintiff.  Lawyer left Law Firm.  Plaintiff moved to disqualify Law Firm.  The trial court denied the motion.  In this opinion the Federal Circuit denied mandamus.  Both courts held that Law Firm's substantial work on this case outweighed any possible harm from the conflict.

United States SEC

In re Barasch, SEC Administrative Proc., File No. 3-14891 (May 24, 2012).  A lawyer worked in an SEC enforcement office.  When he left he began representing a client, whose case the lawyer worked on while at the SEC.  In this order ordered the lawyer suspended from practice before the SEC for one year and noted the lawyer had paid a $50,000 civil fine.  These sanctions were based upon the lawyer's violation of 18 U.S.C. Sec. 207(a)(1).

Canada

In 1994, as a result of the Supreme Court of Canada decision in McDonald Estate v. Martin [1990] 3 S.C.R. 1235 (Can.), the Federation of Law Societies of Canada adopted the Model Rule on Conflicts Arising as a Result of Transfer between Law Firms.   It adopts a balanced screening process.  It, or a version of it, has been adopted by all the Canadian law societies except Quebec, although we are advised that courts in Quebec handle screens in a manner consistent with the rules of the other provinces.  Recent cases in which the court approved a screen are Dyer v. Dyer, 2015 BCSC 2408 (CanLII) (S. Ct. B.C.) ("new" firm had only eight lawyers); Davenport v. Hotel-Dieu of St. Joseph, 2013 NBQB 26 (CanLII) (Ct. Q.B. N.B. Jan. 16, 2013); FP Genetic Inc. v. Lizee, 2012 SKQB 453 (CanLII) (Q.B. Sask. Nov. 2, 2012); Dwyer v. Mann, 2011 ONSC 2163 (CanLII) (Ont. Super. Ct. April 6, 2011); Basque v. Stranges, 2010 ONSC 5605 (Ont. Super. Ct. Oct. 12, 2010); D.B.P. v. R.D.M., 2008 SKQB 455 (CanLII) (Ct. Q. B. for Sask. Nov. 10, 2008), and  Robertson v. Slater Vecchio, 2007 BCSC 987 (CanLII) (S. Ct. of Brit. Col. July 5, 2007),  leave to appeal granted, 2007 BCCA 534 (CanLII) (App. Ct. of B.C. Nov. 2, 2007).  In 1964 Bay Inc. (Budget Car Rentals Toronto Ltd.), 2008 CanLII 54295 (Ont. S. Ct. Oct. 9, 2008), leave to appeal denied, 2008 CanLII 65753 (Ont. S. Ct. Nov. 28, 2008), the court found a screen to be not adequate for several apparent reasons.  First, the screen was not set up  until several days after the lawyer in question arrived at his new firm.  Second, the lawyers at the new firm that took charge of interviewing the new lawyer and setting up the screen were the lawyers working on the case in question, rather than the new firm's general counsel.  This opinion, too, contains a good discussion of screening in Canada.  Williamson v. The Queen, 2009 TCC 222 (CanLII) (Tax Ct. Can. April 23, 2009), involved movement of lawyers and staff to the Department of Justice.  Non-Lawyers: in Hermant v. Secord, 2010 ONSC 6444 (CanLII) (Ont. Sup. Ct. Dec. 8, 2010), the court held a screen worked for a paralegal.  In Dow Chemical Canada Inc. v. Nova Chemicals Corp., 2011 ABQB 509 (CanLII) (Ct. Q.B Alb. Aug. 12, 2011), the court approved a screen even though the conflict did not arise until after the lawyer changed firms.  In M.S.K v. T.L.T., 2011 ONSC 5478 (CanLII) (Ont. Sup. Ct. Sept. 20, 2011), the court disqualified a law firm, in part because it did not erect a timely screen around a legal assistant. In A Big Mobile Sign Co. v. Marshall, 2015 ONSC 894 (CanLII) (Super. Ct. Ont. Feb. 11, 2015), the court disqualified a firm because it set up a screen six weeks later than it should have. In Maso v. Martinez, 2015 ONSC 3467 (CanLII) (Ont. Super. Ct. May 29, 2015), the court disqualified a lawyer because she did not have procedures in place to ensure she did not learn the other side's information from a paralegal.

Swan v. Schoeman, 2013 SKQB 103 (CanLII) (Q.B. Sask. March 22, 2013).  Marital case.  Law Firm represented H for a time in the case.  H terminated that representation and became self-represented.  Law Firm then brought in Lawyer from another firm.  While at the other firm, Lawyer had represented W in this case.  Shortly after Law Firm hired Lawyer, H again retained Law Firm for this case.  Law Firm erected a screen between Lawyer and this case.  W moved to disqualify Law Firm.  In this opinion the court granted the motion.  The court held that Law Firm should not have resumed representation of H after it had hired Lawyer.  That was enough to justify disqualification, as this was not a "transfer of lawyer" case.  As a backstop, the court then analyzed whether the screen was adequate as if this were a "transfer of lawyer" case.  The court found the screen wanting on several bases, including timing.

Kelly v. TD Home & Auto Ins. Co., 2013 NBQB 202 (CanLII) (Q.B. N.B. June 12, 2013).  For this case Plaintiff hired Lawyer/Accountant to testify primarily on accounting issues.  Lawyer/Accountant's law firm then merged with the law firm representing Defendant.  The Defendant's law firm was able to show erection of a fairly airtight screen.  Nevertheless, Plaintiff moved to disqualify Defendant's law firm.  In this opinion the court denied that motion and ruled, instead, that Lawyer/Expert could not act/testify for Plaintiff.

Orr v. Alook, 2014 ABQB 141 (CanLII) (Alb. Ct. Q.B. March 11, 2014). Lawyer formerly represented a group of indians. In this case Lawyer opposed some of those same indians. The former clients moved to disqualify Lawyer and her law firm (“Law Firm”). In a routine sufficiently related analysis the master found the matters related, found that the evidence was that Lawyer likely possessed confidences from the former clients that would prejudice them in this case, and ordered Lawyer disqualified. As to Law Firm, the master ruled it could continue provided it could prove the timely erection of a sturdy screen. In Orr v. Alook, 2015 ABQB 101 (CanLII) (Ct. Q.B. Alberta Feb. 10, 2015), the court was asked to reverse the master on the basis of additional evidence. In this opinion the justice affirmed. The court saw too many openings in the evidence to infer that Lawyer may indeed have confidences of the indians. Because Law Firm could not show erection of a screen, the justice disqualified Law Firm, as well.

Province of Ontario v. Chartis Ins. Co. of Canada, 2014 ONSC 4221 (Ont. Super. Ct. July 16, 2014). We are simplifying the history somewhat, but the essentials for this audience are this: Lawyer worked at Firm A to some considerable extent on cases for the Province against InsCo. Lawyer wound up at Firm B, which is representing InsCo against the Province in those same cases. Firm B erected in advance a screen essentially in compliance with ethics rules of the Law Society of Upper Canada. Nevertheless, the Province moved to disqualify Firm B. In this opinion the motion judge denied the motion, finding that the screen was satisfactory. Excellent discussion of the judicial history of screening in Canada. In H.M.Q. v. Chartis Ins., 2014 ONSC 6792 (CanLII) (Super. Ct. Ont. Nov. 24, 2014), another Superior Court judge granted the losing party leave to appeal. The court said the motion judge seemed to abandon the “presumption” that confidential information would be shared for a weighing test between that possibility and a client’s having counsel of its choice. The court seemed particularly moved by the fact that Law Firm had only fourteen lawyers, all located in the same office instead of “hundreds of lawyers operating out of multiple offices.” In Ontario v. Chartis Ins. Co. of Can., 2016 ONSC 43 (CanLII) (Ont. Super. Ct., Div. Ct. Feb. 11, 2016), the Divisional Court (an appellate court within the Superior Court) ruled that Law Firm should be disqualified. An important factor was that, although Lawyer was shielded from this case, he would be spending about half his time with lawyers who were on this case. At Ontario v. Chartis Ins. Co. of Can., 2017 ONCA 59 (CanLII) (Ct. App. Ont. Jan. 24, 2017), the Court of Appeal ruled that Firm B should be disqualified primarily because of the close working relationship between Lawyer and the lead partner on this case.

Konjevic v. Uber Techs. Inc., 2016 ONSC 5832 (CanLII) (Super. Ct. Ont. Sept. 30, 2016). Toronto sued Uber in 2015 for an injunction (“Other Case”). Represented by Firm 1, Uber won the Other Case. Lawyer was at Firm 1 and had a tangential role in the Other Case. This case is a class action by cab drivers against Uber. Firm 2 is class counsel. Lawyer has joined Firm 2. Lawyer was told on day one that he would have no role in the Uber case. Thirty days after Lawyer joined Firm 2, Uber claimed Firm 2 had a conflict. Upon receiving that objection, Firm 2 erected a formal screen. Uber moved to disqualify Firm 2. In this opinion the court denied the motion. All issues involved fact-intensive analyses. First, the court held that Lawyer’s role for Uber at Firm 1 was too insignificant to be concerning. Second, the court held that during the thirty days after being hired Lawyer was alone in Firm 2’s new Toronto office, and his only role in this case was commissioning two affidavits. Thus, on balance, the court held that no harm to Uber occurred, or was likely to occur, with Lawyer’s being at Firm 2. A judge of the Divisional Court denied leave to appeal at Konjevic v. Uber Techs., 2016 ONSC 7804 (CanLII) (Super. Ct. Not. Dec. 14, 2016).
 
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Changing Firms - Screening - Part I