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Changing Firms - Screening - Part II

Note: this page (“Part I”) covers states through New Mexico.  New York to the end appears at the page denominated “Part II.”

Lawyers

Scenario: Lawyer changes law firms while those firms have a matter pending between them. While at the old firm, Lawyer may or may not have had some contact with that matter. Lawyer’s presence at the new firm may disqualify the entire new firm in that matter. Usually, the consent of the client of the old firm will avoid that result. What if the client will not consent? Will a "Chinese Wall" or screen at the new firm avoid disqualification absent consent? What if the person changing firms is a non-lawyer, such as a paralegal or secretary? Those are the issues addressed on a state-by-state basis below.

Several general comments are in order. In most states we say that, as to lawyers, the screen, without consent, will "probably not" work. That is because those states did not provide for screens for lawyers moving from one private law firm to another.  In those several states with the original Model Rule 1.9(b), where a court has addressed the issue, the court has almost always ruled that the rule means what it says. That rule does not require a screen if the information is not "material."

Enter Restatement § 124. It does not allow a screen where the information is significant, but does not, like Model Rule 1.9(b), stop there. If the lawyer has information that is not "significant," the Restatement requires a screen.  Note, the Model Rule does not require a screen if the moving lawyer's knowledge is not "material to the matter." (We are not aware of anything in the literature that makes a distinction between "significant" and "material.")  Several states have started down the Restatement path. As you will see below, Minnesota has adopted a rule similar to the Restatement's. The New York Court of Appeals has adopted a similar rule in a decision.

In doing research for this section, we had the good fortune to come across Ohio's New Ethical Screening Procedure, by Burkhart R. Lindahl, 31 U. Toledo L. Rev. 145 (Fall 1999).  The article was precipitated by the Kala decision of the Ohio Supreme Court (see Ohio below).  Nevertheless, it is one of the clearest and most comprehensive discussions of screening in the United States that the we have encountered in the years we have considered this subject.

Is Exchange of Information Protected by Rule 1.6?  ABA Op. 09-455 (Oct. 8, 2009).  In this thoughtful opinion the Committee reconciles the duty to protect client information with the duty of law firms involved in the move of a lawyer from one firm to another to identify and resolve conflicts of interest.  The Committee concludes that the exchange of client information is necessary but that the amount and use of the information should be limited and that the timing of the exercise should be appropriate.

Other Articles.  John Sahl, Thinking of Leaving?  The Ethics of Departing One Firm for Another, 19 (Issue 1) Professional Lawyer 2 (2008); Comment, The Use of Screens to Cure Imputed Conflicts of Interest: Why the American Bar Association’s Failure to Allow Screening Undermines the Integrity of the Legal Profession, 35 U. Balt. L. Rev. 367 (2006); Paul R. Tremblay, Migrating Lawyers and the Ethics of Conflict Checking, 19 Geo. J. Legal Ethics 489 (2006) ; John T. Hungerford, Working with what We've got: Toward a Modern Approach to Ethical Screens, 18 Geo. J. Legal Ethics 823 (2005); Susan P. Shapiro, If it Ain’t Broke . . . An Empirical Perspective on Ethics 2000, Screening, and the Conflict-of-Interest Rules, 2003 U. Ill. L. Rev. 1299 (2003);  Sondra Grifford, Burying the Hatchet: Do Tennessee’s New Screening Rules Leave the Clinard Handle Sticking Out?, 70 Tenn. L. Rev. 201 (2002) ; Luke W. Hunt, Case Note, Legal Ethics - Attorney Conflicts of Interest - the Effect of Screening Procedures and the Appearance of Impropriety Standard on the Vicarious Disqualification of a Law Firm, 70 Tenn. L. Rev. 251 (2002); Burton, Migratory Lawyers and Imputed Conflicts of Interest, 16 Rev. Lit. 665 (1997); Hamilton and Coan, Are We a Profession or Merely a Business?: The Erosion of the Conflicts Rules Through the Increased Use of Ethical Walls, 27 Hofstra L. Rev. 27 (1998); M. Peter Moser, Chinese Walls: A Means of Avoiding Law Firm Disqualification When a Personally Disqualified Lawyer Joins the Firm, 3 Geo. J. Legal Ethics 399 (Winter 1990); Erik Wittman, A Discussion of Nonconsensual Screens as the ABA Votes to Amend Model Rule 1.10, 22 Geo. J. Legal Ethics 1211 (2009).

Treatises.  Hazard, Hodes, & Jarvis §§ 14.8-14.11; Rotunda & Dzienkowski §§ 1.10-2 to 1.10-4.

Canada

(moved to end of Part II)

Non-Lawyers

As shown below, most state courts and ethics committees that have considered this issue as to non-lawyers have given non-lawyers more slack and have approved screening.  So did ABA Informal Op. 1526 (1988).  Restatement § 123, cmt. f says that non-lawyers are not subject to the imputation rule governing lawyers and recommends screening.  Caution is advised because a couple of older opinions were not so liberal.  See, for example, Zimmerman v. Mahaska Bottling Co., 19 P.3d 784 (Kan. 2001) (no screening absent consent). Below, where we are not aware of an opinion on non-lawyers in a given jurisdiction, we will not state a view as to whether approval of a screen is "probable," although the trend is strongly in favor of non-consensual screens for non-lawyers.

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.

Model Rules.  See Comment [4] to Rule 1.10 and Comment [1] to Rule 5.3.

Law Reviews.  Natalie Chalmers, "Zimmerman v. Mahaska Bottling Co. : Kansas's Tactical Disqualification Weapon," 15 Kan. J.L. & Pub. Pol'y 369 (Winter 2006); Cecile C. Edwards, Law Firm Disqualification and Nonlawyer Employees: A Proposal for a Consistent Analysis, 26 Miss. C. L. Rev. 163 (2006–2007); Peter H. Geraghty and Susan J. Michmerhuizen, Screen Nonlawyer Employees For Conflicts of Interest, American Bar Association, Your ABA, June 2012 e-newsletter.

Treatise.  Rotunda & Dzienkowski § 11-4.


We have been reading screening cases for the past twenty-five years and writing about them at this site for the past fifteen years. Following are steps that must be considered in erecting a screen. We cannot guarantee that following all the itemized steps will be enough. Courts generally have great discretion in these matters. This discussion is limited to situations where lawyers change firms. We will call the lateral’s initial firm  “old firm” and the receiving firm “new firm.” We will refer to the matter that is the source of concern as “The Matter.”

Do not forget, some jurisdictions will not recognize a screen under any circumstances.

1. The new firm should erect the screen immediately upon learning of the need for one. In many cases, if the new firm has done a good job of conflict checking, it will know of the need for the screen well before the lateral arrives. In those cases the screen must be in place by the time the lateral arrives. In cases where the conflict was not detected, the new firm must scramble to get the screen in place. In may be too late. Some courts have rejected screens where the delay was several days.

2. The new firm should have the lateral sign an undertaking that she will not discuss or share with others in the new firm any information about The Matter.

3. The new firm should circulate a memorandum - possibly every six months or a year - to all lawyers and staff warning of communications with the lateral about The Matter. A few courts have said there should be a threat of termination for violations.

4. Calculate the lateral’s compensation so that she does not benefit from The Matter. (Example: applying the lateral’s shares (percentage) to total firm income after deducting the fees for The Matter.)

5. Program the firm’s document management software to limit lateral’s access to The Matter.

6. If possible, put the lateral on a different floor from the team handling The Matter. If feasible, assign the lateral to a different office entirely from the team handling The Matter. (Examples: downtown Los Angeles vs. Century City; downtown San Francisco vs. Palo Alto; NYC vs. Stamford).

Few, if any, courts have combined all the above requirements in one opinion, but we have seen them all in one case or another. What a checklist can’t help is whether the receiving firm is just too small for a screen to be deemed effective. That issue should be part of the hiring decision.

Summary

Again, the issue posed below is whether a screen or "Chinese Wall" will prevent a disqualification where the second firm does not have a consent from the client of the first firm.


Alabama


Non-Lawyers - Probably not - Ala. Op. RO-02-01 (2002).

Alaska

Lawyers - No.  Rule 1.9(b); Richard B. v. State, 71 P.3d 811 (Alaska 2003).

Arizona

Lawyers - Rule 1.10(d) adopted in 2003 contains a relatively liberal screening rule, effectively reversing Towne Development of Chandler, Inc. v. Superior Court, 842 P.2d 1377 (Ariz. App. 1992).  In Eberle Design, Inc. v. Reno A & E, 354 F. Supp. 2d 1093  (D. Ariz. 2005), the court ruled that the new rule means what it says.  Lawyer went from Firm A (plaintiffs’ firm) to Firm B (defendant’s firm).  During a telephone conference with the judge Firm B asked for the court’s “guidance” as to whether Lawyer will cause Firm B to be disqualified.  The court said that Firm B would not be disqualified as long as Firm B screens Lawyer from this case.  Arizona’s version of Model Rule 1.10 says a screen will work if the moving lawyer did not have a “substantial role” in the case while at his old firm.  The court here said that billing nine hours on the case preparing voir dire questions was not a substantial role.

In Roosevelt Irrig. Dist. v. Salt River Agricultural Improvement & Power Dist., 2011 U.S. Dist. LEXIS 96162 (D. Ariz. Aug. 26, 2011), the court applied Arizona Rule 1.10(d) according its terms, in a CERCLA case.  “Substantial role” was an issue.  The court also held that screening would not help a firm avoid disqualification in the case of a lawyer who had not changed firms.

Ariz. Op. No. 04-04 (June 2004) holds that a public defender office cannot create a separate unit to avoid conflicts.  Screening will not work in that context.

Non-Lawyers - Probably.  Smart Industries Corp. v. Superior Court, 876 P.2d 1176 (Ariz. App. 1994).

Arkansas

Lawyers - Probably not. Rules 1.9(b) and 1.10(a).  See also Burnette v. Morgan, 794 S.W.2d 145 (Ark. 1990).

The Park Apartments at Fayetteville, LP v. Plants, 2018 Ark. 172 (Ark. May 17, 2018). Plaintiff, in 2015, represented by Legal Aid, brought this action against Housing Corp. and Mgmt. Co. challenging the liquidated damages in her lease. Lawyer worked at Legal Aid during the second half of 2016, in the economic justice workgroup. The Legal Aid lawyers representing Plaintiff work in the housing workgroup. In January 2017 Lawyer joined the legal staff of Mgmt. Co. In February 2017 Plaintiff moved to disqualify the defendants' entire legal staff. The trial court granted the motion. In this opinion the Arkansas Supreme Court reversed. The evidence was that Lawyer did not acquire any knowledge about this case while at Legal Aid. The Supreme Court held that mere "access" to information about this case was not disqualifying. One justice dissented and said mere access should be disqualifying. There was no discussion of screening, although one could infer that Lawyer is not working on this case for defendants.

Lineberry v. Riley Farm Property Owners Assoc., 2005 Ark. App. LEXIS 804 (Ark. App. Nov. 9, 2005).  The majority opinion was ordered not published, and it is not available online.  From the dissent we gather that a lawyer who had represented Lineberry early in this litigation joined Riley’s law firm.  Riley moved the appellate court to declare that its firm did not have a conflict, or in the alternative, to grant Riley’s firm leave to withdraw.  Evidently, the majority ruled that it had no jurisdiction to declare whether there was a conflict, but it did grant leave for Riley’s firm to withdraw.  Unfortunately, without the majority opinion, one cannot make much sense of any of this.

Non-Lawyers - Probably.  Herron v. Jones, 637 S.W.2d 569 (Ark. 1982).

California


California Self-Insurers' Security Fund v. Superior Court, 2018 WL 561707 (Cal. App. Jan. 26, 2018). In this case Fund is seeking reimbursement from 304 members of the Fund. Lawyer worked on this case while at the law firm ("Firm 1") representing several defendants. In early February 2017 Lawyer left Firm 1 and joined Firm 2, while Firm 2 was representing Fund in this case. Lawyer was in an office of Firm 2 that was not the office handling the Fund's case. When Firm 2 learned of this situation in early March 2017, Firm 2 and Lawyer promptly "parted ways." Nevertheless, the involved defendants moved to disqualify Firm 2. The trial court granted the motion saying that disqualification was automatic and that a screen would not work. In this opinion the appellate court granted a petition for writ of mandate and remanded the case for the trial court to determine whether "all relevant facts and circumstances" warrant disqualification. The court did say that if Lawyer had remained at Firm 2, Firm 2 would have been disqualified.

Other authority.  Klein v. Superior Court, 244 Cal. Rptr. 226 (1988), and Henriksen v. Great American Savings & Loan, 14 Cal. Rptr. 2d 184 (Cal. App. 1992), have been cited as discouraging screening as a way to avoid disqualification.  In Applied Concepts, Inc. v. Superior Court, 2002 Cal. App. Unpub. LEXIS 603 (Cal. App. April 30, 2002), a screen was erected, but the court ignored it and disqualified the moving lawyer's new law firm.  L.A. County Op. 501 (1999) contains a lengthy discussion of imputation in California, but it does not discuss screening.  See Gibbon-White, Migratory Lawyers in Private Practice: Should California Approve the Use of Ethical Walls?, Loy. L.A. L. Rev. 161 (1999).

Another case involving a firm too small to support a screen is Thomas v. Howard, 2006 Cal. App. Unpub. (Cal. App. Nov. 7, 2006).

City and County of San Francisco v. Cobra Solutions, Inc., 43 Cal. Rptr. 3d 771 (Cal. 2006).  The court held that when a private lawyer for the other side becomes head of a city’s law department, a screen will not prevent the whole department from being disqualified.  The California Supreme Court dealt with screening in the context of governmental units in In re Charisse C., 2008 Cal. LEXIS 1236 (Cal. Oct. 30, 2008).

Not a screening case, but important nonetheless.  Adams v. Aerojet-General Corp., 104 Cal. Rptr. 2d 116 (Cal. App. 2001).  Firm A represented Corporation in environmental matters.  Lawyer X was a partner in Firm A but did no work on Corporation's matters.  Lawyer X moved to Firm B and attempted to sue Corporation on environmental matters.  Corporation moved to disqualify Lawyer X, and the trial court granted the motion.  The appellate court reversed and remanded.  The appellate court purported to answer this issue for the first time:  Were Corporation's confidences in Firm A automatically imputed to Lawyer X, so that Lawyer X cannot sue Corporation on environmental matters?  The appellate court said no, citing ABA Model Rule 1.9 and Restatement § 124.  In remanding the case, the appellate court said:

On remand, the court should focus not only on the relationship between [Lawyer X] and [Firm A's] representation of [Corporation], but whether [Lawyer X's] responsibilities as partner and principal, as well as his relationship with other members of [Firm A], placed him in a position where he was reasonably likely to have obtained confidential information relating to the current case.?

Follows Adams v. Aeorjet. MasterObjects, Inc. v. Amazon.com Inc., No. C 20-08103 WHA (N.D. Cal. June 13, 2022); Loop AI Labs Inc. v. Gatti, 2016 WL 344874 (N.D. Cal. Jan. 28, 2016).

Ochoa v. Fordel, Inc., 53 Cal. Rptr. 3d 277 (Cal. App. 2007), involved a lawyer who changed firms.  Screening was not an issue.  What the lawyer knew about a case pending between his old firm and his new firm was an issue.  The court held that only his "actual knowledge" was the issue.  The fact that the lawyer had "access" to the information at the old firm was not enough to disqualify the new firm.

The following are similar to Aerojet and Ochoa, above: Goldberg v. Warner/Chappell Music, Inc., 23 Cal. Rptr. 3d 116 (Cal. App. 2005), and Umbrasas v. Amgen, Inc., 2007 Cal. App. Unpub. LEXIS 6858 (Cal. App. Aug. 23, 2007) (relying on Aerojet).  Distinguishing Aerojet and Ochoa is Kim v. Superior Court, 2010 Cal. App. Unpub. LEXIS 152 (Cal. App. Jan. 11, 2010). 

In re Zamer, 62 Cal. Rptr. 3d 704 (Cal. App. 2007).  The Children’s Law Center is a not-for-profit organization that represents certain children in juvenile court proceedings.  The Center was organized into separate screened units to represent siblings who might have conflicts of interest.  In this opinion the appellate court held that the screens would prevent disqualification.

Sahlobei v. Montgomery, 2012 Cal. App. Unpub. LEXIS 266 (Cal. App. Jan. 12, 2012).  The law firm in question did not set up the screen until several months after the allegedly disqualified lawyer joined the firm.  In addition the appellate court just did not feel that the law firm offered enough compelling evidence to rebut the presumption of sharing relevant information between the lateral lawyer and the lawyers in the firm handling this case.

Warehime v. Farmers Ins., 2012 Cal. App. Unpub. LEXIS 7326 (Cal. App. Oct. 9, 2012).  In this employment-related case Firm A represents Plaintiff, and Firm B represents Defendant.  While at Firm A Lawyer agreed to help try the case.  Firm A dissolved and Lawyer wound up at Firm B.  Firm B set up screen for Lawyer three months after Lawyer joined Firm B.  In affirming an order disqualifying Firm B the court held that the screen was not timely, citing Kirk v. First American Title Ins. Co., 183 Cal. App. 4th 776, 810 (Cal. App. 2010).


Followed Kirk. Nat’l Grange v. California Guild, 2017 WL 2021762 (E.D. Cal. May 12, 2017). Firm 1 represents Plaintiff in this case. Firm 2 represents Defendant. Lawyer, while at Firm 1, represented Plaintiff on a matter related to this case. Lawyer moved to Firm 2. Plaintiff moved to disqualify Firm 2 in this case. In this opinion the court denied the motion because Firm 2 had screened Lawyer from this case. The opinion reviewed the history of screening in California, up to, and including, Kirk v. First Am. Title Ins. Co., 183 Cal. App. 4th 776 (Cal. App. 2010). Absent contrary authority, the court followed Kirk. An identical opinion appears at 2017 WL 2021731. We have no idea why.

Screening approved.  Openwave Systs. Inc. v. Myriad France S.A.S., 2011 U.S. Dist. LEXIS 35526 (N.D. Cal. March 31, 2011).  The court followed Kirk, shedding doubt on all the cases below that were hostile to non-consensual screens.  In a bad decision that did not even acknowledge Kirk and Openwave the court in Beltran v. Avon Products, Inc., No. 2:12-cv-02502-CJC(ANx) (C.D. Cal. June 1, 2012), denied effect to a screen.  Another bad one: j2 Commc'ns Inc. v. Captaris Inc., 2012 U.S. Dist. LEXIS 179670 (C.D. Cal. Dec. 19, 2012).

Nextdoor.com, Inc. v. Rajabhyanker, 2013 U.S. Dist. LEXIS 101440 (N.D. Cal. July 19, 2013).  In denying a former client disqualification the court noted with approval that the law firm had set up a screen.

Sanofi-Aventis Deutschland GMBH v. Genentech, Inc., 2010 U.S. Dist. LEXIS 53972 (N.D. Cal. May 14, 2010).  In this two-paragraph opinion the court refused to follow Kirk v. First Amer. Title Ins. Co., 183 Cal. App. 4th 776 (2010), as amended by 2010 WL 1803853 (Cal. Ct. App. May 6, 2010), which recognized screening, because it was not a decision of the California Supreme Court.  The opinion does not say that the court was disregarding a screen, although one could infer it was.

Hitachi, Ltd. v. Tatung Co., 419 F. Supp. 2d 1158 (N.D. Cal. 2006), discusses much of the history of screening in California.  It did not approve a screen because no California state court had yet approved a screen.  It did not mention Panther, supra, presumably because the Panther court had withdrawn its opinion.  Moreover, the court said that it would not have approved a screen, in any event, because the tainted lawyer was working in a small group of lawyers who were working on this case. All American Semiconductor, Inc. v. Hynix Semiconductor, Inc., C 07-1200 (N.D. Cal. Dec. 18, 2008), and Largo Concrete, Inc. v. Liberty Mut. Fire Ins. Co., 2007 U.S. Dist. LEXIS 95690 (N.D. Cal. Jan. 2, 2008), said no to screening, citing Hitachi.

All American Semiconductor v. Hynix Semiconductor, 2009 U.S. Dist. LEXIS 12315 (N.D. Cal. Feb. 5, 2009).  Because of the merger of the plaintiffs' law firm ("Law Firm"), the court, in October 2008, had disqualified Law Firm from being adverse to one of several defendants.  Thus, Law Firm withdrew from that part of the representation but continued against the other defendants.  The prevailing defendant then moved to have Law Firm held in contempt.  The court denied that motion, but in this order, the court clarified its disqualification order to require Law Firm to get out of the case completely.  This was largely because this was an antitrust action containing allegations of conspiracy among all the defendants.

Similar to Adams v. Aerojet General, above, Dieter v. Regents of the Univ. of Cal., 963 F. Supp. 908 (E.D. Cal. 1997).

In Visa U.S.A., Inc. v. First Data Corp., 241 F. Supp. 2d 1100 (N.D. Cal. 2003), citing the appellate decision in Panther, the court approved a screen in a situation not involving a moving lawyer.

In ViChip Corp. v. Tsu-Chang Lee, 2004 U.S. Dist. LEXIS 24968 (N.D. Cal. Dec. 3, 2004), the court disqualified a law firm because it did not screen the new lawyer.  This was not the classic case where the new lawyer was not working on the case; he was the lawyer handling the case.

Lucent Technologies Inc. v. Gateway, Inc., 2007 U.S. Dist. LEXIS 35502 (S.D. Cal. May 15, 2007).  In this patent infringement case Law Firm A represents Plaintiff, and Law Firm B represents Defendant.  Lawyer at Firm A left to join Firm B.  While at Firm A Lawyer worked extensively on this case, about 2300 hours over several years.  Firm B’s D.C.-based lawyers worked on this case.  Lawyer joined Firm B’s New York City office.  Firm B did not set up a screen until some time after Lawyer arrived.  At a time when there was no screen in place, several lawyers at Firm B mentioned this case to Lawyer, but Lawyer claimed he told them nothing.  Defendant moved to disqualify Firm B, and in this opinion the court granted the motion.  The court discussed the California cases and Ninth Circuit cases and concluded that under these circumstances California courts would not approve the screen in this case.

Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., 2007 U.S. Dist. LEXIS 83150 (N.D. Cal. Oct. 29, 2007).  Lawyer worked in-house at Plaintiff for several years on Plaintiff’s trademark matters.  In 2000 Lawyer went to work in Law Firm’s Menlo Park office.  Law Firm is representing Defendant in this trademark infringement action.  The mark in question is similar to the marks upon which Lawyer worked while at Plaintiff.  In this opinion the court sustained Plaintiff’s motion to disqualify Law Firm.  The court held that this case was substantially related to what Lawyer had done at Plaintiff.  The court also held that the entire Law Firm should be disqualified.  There had been several half-hearted attempts by Law Firm to set up a screen, but the court seemed to be saying that a screen would not have made any difference because this conflict involved Lawyer’s actual representation of Plaintiff, not just Lawyer’s knowledge of information about the matters in this case.  The court also held that waiting approximately two months from the date the complaint was filed until moving to disqualify did not waive the conflict.  Another untidy aspect to this matter was that Lawyer was listed as one of the lawyers at Law Firm on the application papers for the trademark in question.  Defendant learned of this in early 2006 and raised concerns about it with Lawyer at that time.  Law Firm claimed, however, that its trademark team for this case was based in D.C. and that Lawyer did not, in fact, work on the matter.

Skyy Spirits, LLC v. Rubyy, LLC, 2009 U.S. Dist. LEXIS 109641 (N.D. Cal. Nov. 9, 2009).  For several years Lawyer represented Skyy.  He also represented Kanbar, Skyy's founder.  Lawyer represented Kanbar when Kanbar sold Skyy.  Lawyer continued to represent Skyy after the sale.  After leaving Skyy, Kanbar founded Rubyy.  In this case Skyy, represented by Lawyer, sued Rubyy for copyright infringement (care to guess why?).  Rubyy moved to disqualify Lawyer, because of Lawyer's earlier representation of Skyy and Kanbar.  In this opinion the court denied the motion.  First, the court noted that it was Kanbar who "jumped ship," not Lawyer.  Further, this case is not related to what Lawyer had done for Kanbar.  Last, the court was clearly influenced by the fact that Rubyy waited eight months, during this case's late stages, to file the motion.

Not joining firm, but hiring it.  Neal v. Health Net, Inc., 123 Cal. Rptr. 2d 202 (Cal. App. 2002).  Michael Traylor represents the plaintiff in an action against the defendant, Health Net, Inc.  Health Net fired one of its legal secretaries, Cynthia Brockett, while this suit was pending.  She hired Traylor to represent her.  Accordingly, Health Net moved to disqualify Traylor in this case.  Brockett admitted that while at Health Net she looked briefly at a file related to this case.  Both she and Traylor denied that she gave any of this information to Traylor.  The trial court granted the motion to disqualify Traylor.  The Appellate Court reversed, noting that this case did not involve a lawyer or non-lawyer changing firms but rather a non-lawyer leaving one firm and hiring the other as her lawyer.  The court also noted that there was no showing that Brockett gave Traylor any confidential information from the file she looked at.  This case is not unlike a series of Northern District of Illinois cases cited below under "Illinois."  They involved a lawyer who left a law department and hired (not joined) a law firm that was suing her former employer in three separate cases.  She had had supervisory responsibility for those cases, but the courts held that the defendants had failed to show that she gave her lawyer any information about the cases.  To see a discussion of those cases, click here.

Farhang v. Indian Inst. of Tech., 2010 U.S. Dist. LEXIS 6930 (N.D. Cal. Jan. 13, 2010).  Law Firm represented Former Client in a matter substantially related to this case.  In this case Law Firm is adverse to Former Client.  The three lawyers that billed time for Former Client left Law Firm before this matter arose.  Former Client moved to disqualify Law Firm in this matter.  In this opinion the court denied the motion.  First, the court, following California precedent, adopted the approach of ABA Model Rule 1.10(b).  The focus then became whether any lawyers remaining at Law Firm had learned anything about the earlier matter from the three lawyers who had departed.  After a hearing the court concluded nothing significant had been exchanged.

Farhang v. Indian Inst. of Tech. Kharagpur, 2012 U.S. Dist. LEXIS 100032 (N.D. Cal. July 17, 2012).  Lawyer sought to join the law firm for the defendant ("Law Firm").  Because Lawyer earlier represented the plaintiff in a somewhat similar case, Law Firm sought the plaintiff's permission to bring in Lawyer.  The plaintiff demanded that Law Firm set up a screen, which was done by stipulation.  More recently one of the lawyers ("Lawyer 2"), posted in the same office as Lawyer, started getting active in this case.  In this opinion the court ordered compliance with the terms of the stipulation, including, possibly, moving Lawyer or Lawyer 2 to another office.

Genentech, Inc. v. Sanofi-Aventis Deutschland GMBH, 2010 U.S. Dist. LEXIS 35867 (N.D. Cal. March 20, 2010).  Patent infringement action.  The defendant moved to disqualify the law firm ("Law Firm") for the plaintiff.  In this opinion the court granted the motion.  The senior named partner of Law Firm had earlier, at another law firm, represented the defendant in a patent interference proceeding before the USPTO.  In a lengthy, fact-specific analysis the court held that the earlier matter and this matter were substantially related.  While the extent of Lawyer's involvement in the earlier matter was disputed, the court held that Lawyer's involvement was "direct and personal."  Therefore, the court held, Lawyer was presumed to be privy to material, confidential information about the defendant.  Although Lawyer had no involvement in this case, because California courts had not embraced screening, Lawyer's disqualification was imputed to Law Firm.  This case appears to have been decided before Kirk (see above at the beginning of the California discussion).

Streetspace, Inc. v. Google Inc., 2012 U.S. Dist. LEXIS 15187 (N.D. Cal. Feb. 1, 2012).  Lawyer left Old Firm to join New Firm.  While at Old Firm, other lawyers prosecuted the patent at issue in this infringement case.  New Firm is representing a defendant in this case.  Plaintiff moved to disqualify New Firm because of the presence of Lawyer.  In this opinion the court denied the motion because New Firm carried its burden of showing that Lawyer knew nothing about the patent in question while at Old Firm.

Not a Migratory Lawyer Case. Signature MD, Inc. v. MDVIP, Inc., No. CV 14-5453-DMG (SSx) (C.D. Cal. Jan. 20, 2015). In a former-client, substantial-relationship situation, where the firm attempted to set up a screen, the court held that a two-day delay was fatal.

Western Sugar Coop. v. Archer-Daniels-Midland Co., No. CV 11-3473 CBM (MANx) (C.D. Cal. Feb. 13, 2015). Interesting discussion of screening in California. Moreover, a firm claimed it had a de facto screen in place because of incompatible computer systems of merged firms (to be followed by formal screen). What seemed to cause the court to reject the screen in this case was the fact that two lawyers from screened groups had communicated.

Follows Adams v. Aerojet (see state decisions, above). Loop AI Labs Inc. v. Gatti, 2016 WL 344874 (N.D. Cal. Jan. 28, 2016).

Blankenchip v. CitiMortgage, Inc., 2016 WL 6821867 (E.D. Cal. Nov. 18, 2016). Plaintiffs sued MortCo for wrongful foreclosure. Lawyer applied for pro hac vice admission to represent Plaintiffs. MortCo objected because Lawyer had just left employment with Law Firm. Law Firm represents MortCo around the U.S. in consumer finance cases. In this opinion the court allowed Lawyer’s admission. As to a current client conflict, the court said whatever brief relationship existed between Plaintiffs and Lawyer prior to his leaving Law Firm was “de minimis” and not worthy of disqualification. As to a former client analysis, the court found that Lawyer had nothing to do with MortCo’s consumer finance work while at Law Firm.

Non-Lawyers - Probably.  Atmel Corp. v. Information Storage Devices, Inc., 1998 U.S. Dist. LEXIS 4241 (N.D. Cal. 1998); Devora v. Costco Wholesale Corp., No B306090 (Cal. App. 2d Dist. Unpub. May 26, 2021); Wallis v. PHL Associates, Inc., 2006 Cal. App. Unpub. LEXIS 1739 (Cal. App. Feb. 28, 2006); In Re Complex Asbestos Litigation, 283 Cal. Rptr. 732 (Cal. App.1991); Gregori v. Bank of America, 254 Cal. Rptr. 853 (Cal. App. 1989).  Cal. Op. 1992-126 (1992) seems to suggest that screening will work for temporary lawyers who move from firm-to-firm.  Thomas v. Howard, 2006 Cal. App. Unpub. LEXIS 11287 (Cal. App. Dec. 15, 2006), did not follow In Re Complex Asbestos Litigation, because paralegal had passed the bar exam (but, not yet admitted).

L.A. Co. Bar Ass'n Op. 524 (2011).  This opinion addresses the confidentiality and other obligations of a non-lawyer and the new firm where the non-lawyer changes law firms with information about a matter between the firms.  Among other things, the opinion acknowledges that a screen will work.

Pursley v. Philippe, 2010 Cal. App. Unpub. LEXIS 6513 (Cal. App. Aug. 16, 2010).  Automobile accident case.  The defendants were insured by InsCo.  The InsCo adjuster working on this case approached the plaintiffs' law firm ("Law Firm") about a job before the trial, but did not work at the firm until after the trial.  On the first day of trial the defendants learned that the adjuster accepted the job (but had not yet started) with the plaintiffs' law firm.  The defendants moved to disqualify the plaintiffs' law firm.  The trial court denied the motion.  In this opinion the appellate court affirmed.  The court noted, among other things, that the adjuster had no contact with the lawyers handling this case and that it was the intention of Law Firm to screen the adjuster from all InsCo cases.  Although the adjuster had a law degree, the court noted that the adjuster did not do legal work on this case, and ruled that the adjuster be treated as a non-lawyer.

Jones v. City of L.A., 2018 WL 2252543 (Cal. App. Unpub. May 17, 2018). This is one of several employment related cases. In three other cases Hispanic police officers sued L.A. because their supervisor ordered them to speak English only in the squad room. An in-house lawyer defended L.A. She was assisted by Officer Carla Cryer. In this case non-Hispanic officers sued L.A. because they were harassed by Hispanic officers speaking Spanish. L.A. is being represented by Outside Law Firm, which is being assisted by the same Officer Cryer. Because of Cryer's involvement, the non-Hispanic plaintiffs in this case moved to disqualify Outside Law Firm. The trial court granted the motion. In this opinion the appellate court affirmed. Much of the fact-specific analysis deals with what Cryer learned by and from the non-Hispanic officers during defense of the three cases brought by the Hispanic officers. On balance the court found that Cryer, the non-lawyer learned too much and had not been screened in this case. The court relied extensively on Shadow Traffic Network v. Superior Court, 24 Cal. App. 4th 1067 (1994).

Colorado

Lawyers - Probably.  Rules 1.9(b) and 1.10(a). See Colorado Formal Op. 88 (1991).  However, one federal judge in Colorado spoke favorably of screens, Hunter Douglas, Inc. v. Home Fashions, Inc., 811 F. Supp. 566 (D. Col. 1992). People v. Manzanares, 139 P.3d 655 (Col. 2006), looks favorably upon screens for former defense lawyers who move to prosecutors’ offices.

As of January 1, 2008 - Probably. According to the June 27, 2007, online edition of the Current Reports of the ABA/BNA Lawyers’ Manual on Professional Conduct, Colorado has amended its rules to conform to most of the ABA changes in 2002-2003.  One exception is that Colorado will add a fairly lawyer-friendly screening provision to Rule 1.10.  For a screen to work, the moving lawyer should not have “substantially participated” in the subject matter at his or her former firm.  The Colorado changes will take effect January 1, 2008.


Connecticut

Lawyers - Probably. Conn. Rule 1.10(a)(b); very similar, if not identical, to ABA Model Rule 1.10.

The case law in Connecticut is interesting.  In Laprise v. Paul, 2007 Conn. Super. LEXIS 3236 (Conn. Super. Dec. 7, 2009), upholding a screen, the court said:

When sufficient procedures are put in place in the form of a "Chinese Wall" to guarantee that there can be no accidental disclosure of a client's confidential information no disqualification is required when an attorney changes employment into an adversaries' law firm. Milne v. Ryea, supra. The concept of screening or a "Chinese Wall" has often been recognized in Connecticut courts.  See, e.g. Temkin v. Temkin, 1993 WL 392941, 10 Conn. L. Rptr. 127, 1993 Conn. Super. LEXIS 2442; Beckenstein Enterprises et al. v. Dennis J. Smith, 2003 WL 1900915, 34 Conn. L. Rptr. 459, 2003 Conn. Super. LEXIS 918.

Also, see Horch v. United of Omaha Life Ins. Co., 1999 Conn. Super. LEXIS 1792 (Conn. Super. 1999), which approved a screen, but citing no Connecticut authority for doing so.  Also see State of Connecticut v. White, 2000 Conn. Super. LEXIS 85 (Conn. Super. 2000), and State of Connecticut v. Marion, 2000 Conn. Super. LEXIS 77 (Conn. Super. 2000). Neither was about lawyers changing firms; they were both criminal prosecutions. Neither discussed Rule 1.10(b). In each case, the court implied that if an effective "Chinese Wall" had been erected, there might not have been a disqualification. In Wellner v. Carroll, 1995 Conn. Super. LEXIS 359 (Conn. Super. 1995), not involving a lawyer changing firms, the court implies that a "Chinese Wall" in that case might have prevented disqualification. It does not discuss Rule 1.10(b).


Non-Lawyers - Maybe.  Rivera v. Chicago Pneumatic Tool Co., 1991 Conn. Super. LEXIS 1832 (Conn. Super. 1991).

Delaware


Bleacher v. Bose, 2017 WL 1854794 (Del. Super. Ct. May 3, 2017). Medical malpractice case against Doctor. Lawyers A and B were, at all times, partners in Law Firm. Lawyer A earlier defended Doctor in a different malpractice case, through trial. Lawyer B represents Plaintiff in this case. Doctor moved to disqualify Law Firm. A and B filed affidavits saying B is screened from the earlier case. In this opinion the trial judge granted the motion under Rule 1.10(a). The court said the screening exception under Rule 1.10(c) was not available because this case did not involve a “migrating” lawyer.

Intellectual Ventures I LLC v. Checkpoint Software Tech., Inc., Civ. No. 10-1067-LPS (D. Del. June 30, 2011).  Law Firm helped client set up a "patent troll" (our phrase), which is the plaintiff in this case.  Law Firm did much work for the plaintiff over several years.  After plaintiff and Law Firm had a falling-out, Law Firm appeared in this patent infringement case for one of the defendants.  The plaintiff moved to disqualify Law Firm.  In this opinion the court granted the motion.  The court conducted a fact-intensive substantial relationship analysis, finding that the matters were related.  Law Firm tried to head off disqualification by setting up a screen between the lawyers that had worked on the plaintiffs matters and the lawyers handling this case.  The court rejected the screen, distinguishing Boston Sci. Corp. v. Johnson & Johnson, Inc., 647 F. Supp. 2d 369 (D. DeL 2009).  The court emphasized that the matters in Boston Scientific were unrelated and that the lawyers in question were in different offices.

Enzo Life Sciences, Inc. v. Adipogen Corp., 2013 U.S. Dist. LEXIS 164939 (D. Del. Nov. 20, 2013).  Lawyer, while at Firm No. 1 did work on this case for the defendants.  Lawyer then went to Firm No. 2 and became a name partner.  Firm No. 2 then showed up as counsel for the plaintiff.  At the same time Firm No. 2 notified the defendants of Lawyer’s presence at Firm No. 2 and described an elaborate screen separating Lawyer from this case.  The defendants moved to disqualify Firm No. 2.  In this opinion the court granted the motion.  (Court’s Local Rules adopted the ABA Model Rules, so the screen was analyzed in the Model Rules context.)  Among other things, the court thought that Lawyer did too much work on this case while with Firm No. 1.  The court also felt that Firm No. 2, having only eight lawyers, was too small for the screen to work.  Last, the court did not believe Firm No. 2’s assertion that Lawyer would not benefit from the fees earned in this case.

Non-Lawyers - Probably.  Del. Op. 1986-1 (undated).

District of Columbia

Lawyers - Probably. Rule 1.10(b)(3). D.C.’s Rule 1.10(f) is unique among states allowing non-consensual screening. Where confidentiality concerns make notice to the other side impractical, the rule requires the hiring law firm to file the notice under seal with the D.C. Disciplinary Counsel. When confidentiality is no longer an issue, the rule requires the hiring law firm to give the notice to the affected party.

Doing the Conflicts Analysis without Violating Confidentiality Rules.  D.C. Op. 312 (2002).  This opinion deals with the delicate topic of what a potential hire and her new law firm can tell each other when sorting through the potential conflicts.  Increasingly, authorities are taking the position that the mere identity of a client may be subject to the confidentiality provisions of Model Rule 1.6 and similar rules.  This opinion sifts through the various permutations of how the firm and the candidate can do the conflicts check without violating such rules.  What makes the opinion slightly “one-off” is the fact that D.C.’s version of Rule 1.6 retains the “confidence or secret” rubric, and the opinion confines its analysis to the D.C. version.

APCC Services, Inc. v. AT&T Corp., Civil Action No. 99--696 (ESH) (D.D.C. July 6, 2011).  While with Firm A Lawyer agreed not to be adverse to AT&T in this case.  Now, with Firm B, Lawyer is opposing AT&T in this case.  AT&T moved to disqualify Lawyer in this case.  In this two-page opinion the court granted the motion, applying the agreement according to its terms.

Non-Lawyers - Probably.  D.C. Op. 227 (1992) & 279 (1998).

Florida

Lawyers - Probably not. Rule 4-1.10(b). See Gaton v. Health Coalition, Inc., 745 So. 2d 510 (Fla. App. 1999); Birdsall v. Crowngap, Ltd., 575 So. 2d 231 (Fla. App. 1991); Edward J. DeBartolo Corp. v. Petrin, 516 So. 2d 6 (Fla. App. 1987); Nissan Motor Corp. v. Orozco, 595 So. 2d 240 (Fla. App. 1992).

Solomon v. Dickison, 916 So. 2d 943 (Fla. App. 2005).  Lawyer moved from Firm A to Firm B.  Lawyer and Firm B are representing the plaintiffs in this medical malpractice case.  Firm A represents the defendants, including a hospital.  While Lawyer was with Firm A, he represented the hospital in a number of cases.  One day, while still at Firm A, he had a conversation with the hospital’s claims adjuster about this matter.  Based upon that conversation, the hospital moved to disqualify Lawyer and Firm B.  In his affidavit Lawyer claimed that all the adjuster said was that the hospital was going to send a case to Firm A that involved a patient who had a problem when admitted and had a worse problem after treatment.  The adjuster submitted an affidavit saying that she told Lawyer all about the case.  The trial court, relying on Florida’s version of MR 1.9, granted the motion, holding that the presumption that Lawyer had the hospital’s information from the earlier representations was “irrefutable.”  The appellate court in this opinion ordered the disqualification vacated and remanded for an evidentiary hearing.  It ruled that the motion should have been governed by Florida’s version of MR 1.10(b), that the foregoing presumption was not irrefutable, and that the trial court should hold an evidentiary hearing to resolve the conflict raised by the two affidavits.

Scott v. Higginbotham, 834 So. 2d 221 (Fla. App. 2002). Andrew Klymenko changed firms while a matter was pending between the two firms.  The client of the old firm moved to disqualify the new firm.  A partner in the old firm submitted an affidavit stating that Klymenko had confidences about the matter.  But, in a hearing the partner could not recall what the confidences were.  Klymenko testified that he received no such information.  The trial court denied the motion to disqualify.  The appellate court affirmed.

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.

Bon Secours-Maria Manor Nursing Care Center, Inc. v. Seaman, 959 So. 2d 774 (Fla. App. 2007).  Associate at Firm A represented the plaintiff in this case.  While this case was pending, Firm A dissolved, and the first-named partner of Firm A (“Partner”) joined Firm B, the firm that represented the defendant.  Associate continued on behalf of the plaintiff.  The plaintiff moved to disqualify Firm B because of the presence of Partner.  The trial court granted the motion.  In this opinion the appellate court reversed.  The court noted that the only “evidence” that the Partner knew anything about this case was the unsworn statement of Associate.  In contrast the Partner filed an affidavit stating that he knew nothing about the case.



Georgia

Lawyers - Probably not. Rule 1.9(b). Robinson v. First Key Homes of Ga., LLC, 2022 WL 16547139 (Ga. App. Oct. 31, 2022); Helton v. The Geo. D. Warthen Bank, 2022 WL 16700386 (M.D. Ga. Nov. 3, 2022). But, see Georgia Baptist Health Care System, Inc. v. Hanafi, 559 S.E.2d 746 (Ga. App. 2002).  The plaintiff, a doctor, sued a hospital in two successive actions relating to the hospital’s refusal to grant practice privileges to the plaintiff.  During the earlier proceeding, the plaintiff changed law firms.  The defense firm then hired from the plaintiff’s earlier firm a young lawyer who had worked on the plaintiff’s case.  The defense firm erected a screen and wrote a letter to the plaintiff’s then current firm saying that the defense firm assumed the plaintiff had no objection to the arrangement.  The opinion does not state that the defense firm received a specific oral approval of the screen.  Seventeen months into the first proceeding the plaintiff moved to disqualify the defense firm.  The trial judge denied the motion, and the plaintiff did not appeal the ruling.  The plaintiff then dismissed the action. The plaintiff brought a second action.  The same defense firm appeared.  After eight additional months, the plaintiff moved to disqualify the defense firm.  The trial judge granted the motion.  On appeal the appellate court reversed.  The appellate court said that the seventeen-month and eight-month delays rendered the motion to disqualify untimely.  In addition the court noted there was “evidence” of a waiver and that the screen seemed effective to prevent the plaintiff from being prejudiced. 

11th Cir. Approves screen.   Bayshore Ford Truck Sales, Inc. v. Ford Motor Co., 380 F.3d 1331 (11th Cir. 2004).  Bayshore is one of several dealers suing Ford regarding their franchise agreements.  They filed the suit in 1998.  Sutherland Asbill is Ford's local counsel in the case.  In 1999 Charles Glanz joined Sutherland, bringing one of the plaintiffs and its owner with him.  He did corporate and estate planning for those clients.  Sutherland attempted to get a waiver from those plaintiffs but were unsuccessful.  Sutherland then dropped the dealer and its owner as clients.  Sutherland also erected a screen between Glanz and the lawyers working on this case.  The dealer moved to disqualify Sutherland.  The trial court (N.D. Ga.) denied the motion.  In this opinion the appellate affirmed.

The court expressed hostility to screening in Amoco Chemicals Corp. v. McArthur, 568 F. Supp. 42 (N.D. Ga. 1983).

Note:  Georgia recently adopted the Model Rule version of Rule 1.9(b), which does not make allowances for screens.  It is not clear whether the appellate court would have allowed the defense firm to stay in the case absent the plaintiff’s long delays in raising the conflict.

In re Formal Advisory Op. 10-1, 2013 Ga. LEXIS 617 (Ga. July 11, 2013).  The court held that the imputation provisions of Rule 1.10 apply to all members of the same circuit public defender office.

Non-Lawyers - Probably. Hodge v. UFRA Sexton, LP, 2014 Ga. LEXIS 346 (Ga. May 5, 2014) (provided notice given to other side).

Hawaii

Lawyers - Tough Screening Rule. Rule 1.10(c). Screen requires consent if moving lawyer participated in the matter at the first firm.


Idaho

Lawyers - Probably not. Rule 1.10(b).


Illinois

Lawyers - Yes. Rules 1.10(b)(2) and 1.10(e). See Cromley v. Lockport Bd. Of Educ., 17 F.3d 1059 (7th Cir. 1994); Amurol Confections Co. v. Morris Nat'l, Inc., 2003 U.S. Dist. LEXIS 9544 (N.D. Ill. June 5, 2003); Miller v. Chicago & N.W. Trans. Co., 938 F. Supp. 503 (N.D. Ill. 1996).  But, see Van Jackson v. Check 'n Go of Illinois, Inc., 114 F. Supp. 2d 731 (N.D. Ill. 2000).  The court disqualified the new firm, primarily because it was too small (four lawyers) to ensure that a screen would work.  Two cases on Illinois' position on screening that predated adoption of screening in the Illinois Rules of Professional Conduct are: SK Handtool Corp. v. Dresser Indust., Inc., 619 N.E.2d 1282, 1290 (Ill. App. 1993); and Marriage of Thornton, 486 N.E.2d 1288, 1294-97 (Ill. App. 1985).

Not joining firm, but hiring it.  Burrow v. Northeast Illinois Regional Railroad Corp., 2002 U.S. Dist. LEXIS 8100 (N.D. Ill. May 6, 2002).  Burrow is suing the railroad for personal injuries.  His law firm is also representing a former in-house lawyer from the same railroad.  While with the railroad, the in-house lawyer supervised this case.  The railroad has moved to disqualify Burrow’s law firm.  The court denied the motion, principally because it was satisfied that the former in-house lawyer would not reveal confidences about this case to Burrow’s lawyers in this case.  The Northern District of Illinois had its own set of ethics rules, which included a liberal screening rule for lawyers changing firms – similar to the Illinois rule.  While this case is not strictly about a lawyer changing firms, the court relied, in part, on the court’s screening rule.  Keane v. Northeast Illinois Regional Railroad Corp., 194 F. Supp. 2d 452 (N.D. Ill. 2002), was yet another action brought by the same law firm for another plaintiff.  The former in-house lawyer had worked on that case, as well.  The same motion was made and denied by a different judge.  Here is another one, Williams v. Northeast Illinois Regional Railroad Corp., 2002 U.S. Dist. LEXIS 9743 (N.D. Ill. May 29, 2002).  Different plaintiff; same result.

Jackson Nat. Ins. Co. v. Duane Morris & Heckscher, Circuit Court of Cook County, Illinois.  (The following summary is taken from an article in the November 11, 2000 online Law.com.  To go to the article, click here.)  Jackson National Insurance Company ("JNIC") had hired Holleb & Coff of Chicago to sue the Philadelphia law firm, Duane Morris & Heckscher.  Duane Morris brought into its Chicago office ten lawyers from Holleb & Coff, at least one of whom had billed time on the JNIC matter.  JNIC sued Duane Morris for an injunction prohibiting their bringing in the Holleb & Coff lawyers.  According to the article, a judge of the Circuit Court of Cook County, Illinois, has denied the injunction because Duane Morris had successfully screened the new lawyers under Illinois' pro-screening rule.  The case is one of the few conflict of interest cases decided not in the context of a motion to disqualify, but rather in a suit for injunction.  For other examples go to "Enjoining Conflicts" by clicking here.

Safe-T-Products, Inc. v. Learning Resources, Inc., 2002 U.S. Dist. LEXIS 20540 (N.D. Ill. October 24, 2002).  Lawyer worked on trademark matters at his old firm, including matters for the defendant in this case.  He then moved to his new firm.  After arriving at his new firm he filed this trademark case against the defendant.  Two of defendant’s marks he did work on at his old firm are involved in this case.  Six months after the case was filed, defendant moved to disqualify Lawyer and his new firm.  The court disqualified Lawyer, finding what he had done at his old firm was substantially related to this case.  The court in part relied on the “playbook view” of lawyer’s involvement.  The court said that while working on defendant’s trademark matters at his old firm, Lawyer “likely obtained confidential information about Defendants' business practices that might be relevant to the case at hand.”  The court was also influenced by the fact that Lawyer had actually worked on two marks relevant to this case while at the old firm (although the evidence was that this work was minimal).

The court refused to disqualify Lawyer’s entire new firm.  The court based that decision on the fact that defendant waited six months before bringing the motion to disqualify.  The court also found that Lawyer had not conveyed any of defendant’s confidences to anyone in the new firm.  (Note: The Northern District of Illinois has its own set of ethics rules; however, it adopted the Illinois Rules approach and provides for screening of lawyers changing firms.  Here, of course, the screen was not set up when the suit was filed.  Without saying it in so many words, the court was giving the new firm a pass on this because of defendant's delay.)


Non-Lawyers - Probably.  Kapco Mfg. Co. v. C&O, Inc., 637 F. Supp. 1231 (N.D. Ill. 1985); Chicago Bar Op. 5 (1994).

Indiana

Lawyers - Perhaps. Indiana has the Model Rule version of Rule 1.10(b).  XYZ, D.O. v. Sykes, 2014 Ind. App. LEXIS 557 (Ind. App. Nov. 13, 2014). Law Firm brought this medical malpractice case against Doctor. Lawyer is employed at Law Firm. Before joining Law Firm Lawyer had represented Doctor in six medical malpractice cases. In this case, Doctor moved to disqualify Law Firm. In this opinion the appellate court reversed ruled that under Indiana’s screening rule, a screen would not save Law Firm because Lawyer had had “primary responsibility” in the six prior malpractice cases. An Indiana appellate court had approved screening prior to the current version of Rule 1.10(b), Gerald v. Turnock Plumbing, Heating & Cooling, LLC, 768 N.E.2d 498 (Ind. App. May 20, 2002).  It ruled that the firm should be disqualified, because the screen was not timely.  The court adopted the reasoning of the Seventh Circuit in approving screening.  The following Indiana federal district court cases have also done so: Chapman v. Chrysler Corp. 54 F. Supp. 2d 864 (S.D. Ind. 1999); and Speedy v. Rexnord Corp. 54 F. Supp. 2d 867 (S.D. Ind. 1999).

Iowa

Lawyers - Probably not.  Rule 1.9(b).  In Doe v. Perry Community School District, 650 N.W.2d 594 (Iowa 2002), the court said it approved screening to cure imputed disqualification, but not where the matters in question are "substantially related."  In other words, if a lawyer works on a case and then joins the firm on the other side, a screen will not cure his taint of the entire new firm, an odd conclusion.  Then, you have Sorci v. Iowa District Court for Polk County, 671 N.W.2d 482 (Iowa 2003), a case uniquely relevant to Iowa lawyers.  It involves a lawyer who moved from government to a not-for-profit legal aid entity (move #1) that routinely was adverse to the office from which she left.  The Iowa Supreme court upheld the trial court’s ruling that the not-for-profit be disqualified in many cases.  The court went on to rule that the lawyer’s leaving the not-for-profit (move #2) resulted in saving the not-for-profit from disqualification in certain other cases.  Iowa still has the older Model Code, but is considering a switch to the “Ethics 2000” version of the ABA Model Rules.  Thus, the court was caught in an “in-between” situation, which clouds the significance of its rulings in this case.  It did follow a Restatement section on lawyers who have left employment.  It referred to Doe several times, but not in a way that sheds any real light on things.

Sequel to Sorci.  Iowa Sup. Ct. Att’y. Disciplinary Bd. v. Johnson, 728 N.W.2d 199 (Iowa 2007) .  Lawyer went from being a member of the county prosecutor’s staff to the not-for-profit agency that advised on the appointment of guardians ad litem in juvenile cases.  In this opinion the court reaffirmed that a screen would work for cases in which she had been involved while with the county.  However, because she personally involved herself in two cases upon she had worked while with the county, she should be publicly reprimanded.

Engineered Products Co. v. Donaldson Co., 290 F. Supp. 2d 974 (N.D. Iowa 2003).  In this patent infringement case there was a dispute about whether the plaintiff’s lawyer had a conflict of interest.  Carlson’s problem was that he used to represent Donaldson while at his prior firm, Merchant & Gould (“M&G”) in Minneapolis.  He tried patent cases for Donaldson and got to know Donaldson’s executives.  Carlson claimed he had never heard of this case until after he left M&G and EPI came to him and asked him to replace EPI’s other counsel.  The extent of Carlson’s knowledge about Donaldson was hotly disputed.  The magistrate judge accepted Carlson’s statement that he knew nothing about this case while at M&G but disqualified him anyway.  The magistrate did not make a “playbook” analysis, but rather applied a presumption that Carlson had Donaldson’s secrets while at M&G.  The court further held that the presumption was not rebuttable.  The magistrate, basing his decision on the appearance-of-impropriety test (this is Iowa, remember), granted the motion to strike Carlson’s pro hac vice status.

Kansas

Lawyers - Probably not. Rule 1.10(b). See Lansing-Delaware Water Dist. v. Oak Lane Park, Inc., 808 P.2d 1369 (Kan. 1991); Parker v. Volkswagenwerk Aktiengesellschaft, 781 P.2d 1099 (Kan. 1989); Graham v. Wyeth Laboratories, 906 F.2d 1419 (10th Cir. 1990); Pacific Employers Ins. Co. v. P.B. Hoidale Co., 796 F. Supp. 1428 (D. Kan. 1992); Kan. Op. 90-005 (1991).

Non-Lawyers - No.   Zimmerman v. Mahaska Bottling Co., 19 P.3d 784 (Kan. 2001);  Kansas Op. 90-5 (1991).

Kentucky

Lawyers - Probably. Rules 1.9(b) and 1.10(d).

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).

U.S. v. Anis Chalhoub, M.D., 2017 WL 4583250 (E.D. Ky. Oct. 13, 2017). Lawyer A and Lawyer B, both members of Law Firm, appeared for Defendant in this healthcare fraud criminal case. Lawyer A was disqualified because he had earlier represented Defendant’s employer. Lawyer B had not joined Law Firm until after that representation had ended. After Lawyer A was disqualified, Law Firm set up a screen and so notified its former employer client. Nevertheless, the government moved to disqualify Lawyer B and all of Law Firm. In this opinion the court reviewed Kentucky’s screening requirements and Law Firm’s screening procedures in detail, and denied the motion.

Republic Services, Inc. v. Liberty Mut. Ins. Co., 2006 U.S. Dist. LEXIS 77363 (E.D. Ky. Oct. 20, 2006).  In this case the plaintiff has sued several related insurance companies for the way they handled the plaintiff’s workmen’s compensation matters.  Lawyer, one of lawyers appearing in this case for Firm B, was formerly at Firm A (Firm A is not in this case).  While at Firm A Lawyer did work for several of the insurance company defendants in this case.  For this reason the defendants moved to disqualify Lawyer and Firm B in this case.  In this opinion the court granted the motion.  The court first found that, although Lawyer did not work on workmen’s compensation matters at Firm A, he did gain “playbook” (our word – actually, Wolfram’s word) information about the defendants.  Thus, the court held that Lawyer was personally disqualified in this case, pursuant to Kentucky Rule 1.9(a).  The court went on to hold that under Kentucky Rule 1.10(a) Firm B was also disqualified.  Kentucky is a screening state; however, it appears that Lawyer was not only not screened from this case, he was one of the plaintiff’s lawyers in this case.  Another Firm B lawyer, who also formerly handled matters for defendants at Firm A, was screened from this case.  However, because of the ruling disqualifying Lawyer and Firm B, there was no need to consider the efficacy of the screen.


Non-Lawyers - Probably. Ky. Op. E-308 (1985).

Louisiana

Lawyers - Probably not. Rule 1.10(b). But, see Petrovich v. Petrovich, 556 So. 2d (La. App.), cert. denied, 559 So. 2d 1377 (1990). The court did not recognize a screen in Green v. Administrators of Tulane Educational Fund, 1998 U.S. Dist. LEXIS 769 (E.D. La. 1998).

In re Lawrence, 884 So. 2d 561 (La. 2004), is a case in which the moving lawyer's new firm tried to avoid a disqualification by showing that the lawyer really knew nothing about the case in question.  While an associate at the Windhorst firm, John Lawrence represented Allison Curtis, a plaintiff in a personal injury case.  The Aubert firm defended the case.  While the case was pending, Lawrence moved to the Aubert firm.  Daryl Higgins, an associate at the Windhorst firm, took over Ms. Curtis’ case.  When Higgins looked at Lawrence’s time records, he noted that Lawrence had recorded 15 hours on all sorts of tasks, including interviewing Ms. Curtis.  Higgins then made a motion to disqualify the Aubert firm.  As part of its response, the Aubert firm produced Lawrence’s affidavit, which stated that Lawrence had really worked only one hour on the case and had learned nothing important from Ms. Curtis.  As to the time discrepancies, Lawrence stated that he had “padded” his time, because that is what he thought his firm wanted him to do.  On the day of the disqualification hearing the Aubert firm withdrew from the case.  The court referred the time discrepancy matter to disciplinary authorities.  Ultimately, in this opinion the court ruled that Lawrence should be suspended for three months because of his admission that he had padded his time sheets, in violation of Louisiana’s version of Model Rule 8.4(a)&(c).

Willis v. TRC Companies, Inc., 2006 U.S. Dist. LEXIS 70776 (W.D. La. Sept. 28, 2006).  While this case was pending, Lawyer A resigned from the firm representing the defendant (“Firm X”) and joined the firm representing the plaintiff (“Firm Y”).  For this reason the defendant moved to disqualify Firm Y.  While A did not work on this case at Firm X, another lawyer at Firm X (“Lawyer B”) filed an affidavit claiming that he, B, had had a wide-ranging conversation about the case with A, while A was at Firm X.  A responded that he could not remember any such conversation.  The court, in this opinion, denied the motion.  The court noted that while Firm X could have produced time sheets verifying that the conversation had occurred, Firm X did not do so.  As to that failure, the court wryly observed:

The undersigned finds that it is not merely unlikely, but well nigh impossible to believe that any substantive conversation involving information protected by Rule 1.6 would have occurred without at least one and probably both of the attorneys billing the client for their time.

Maine

Lawyers - Probably not. Rule 3.4(k). See Casco Northern Bank v. JBI Ltd., 667 A.2d 856 (Me. 1995).

Doe v. Regional School Unit, 2013 U.S. Dist. LEXIS 16700 (D. Me. Feb. 7, 2013).  Firm A represents the plaintiff, Firm B the defendant.  While at Firm B Lawyer worked more than a hundred hours on this case.  Lawyer moved to Firm A.  Firm A erected a screen although Maine rules do not recognize non-consensual screens.  The defendant moved to disqualify Firm A.  In this opinion the magistrate judge denied the motion.  The court said that the defendant had not shown actual prejudice by Lawyer's move and seemed influenced by Firm A's screen.  The court's analysis of the extent and nature of Lawyer's exposure to the defendant was very fact-intensive.

Non-lawyers - Probably. Me. Op. 186 (July 22, 2004).

Maryland

Lawyers - Probably. Rule 1.10(b).  The court in Compass Marketing, Inc. v. Schering-Plough Corp., 2006 U.S. Dist. LEXIS 49311 (D. Md. July 6, 2006), applied liberal screening rule according to its terms.

Stratagene v. Invitrogen Corp., 225 F. Supp. 2d 608 (D. Md. 2002).  Vanessa Pierce changed firms.  Her old firm represents a plaintiff in a patent infringement case.  At her new firm Pierce is representing the defendant.  The plaintiff moved to disqualify Pierce and her firm.  While at her old firm, Pierce did work on a patent related to the one at issue in this case.  A partner at her old firm said Pierce had unfettered access to the firm’s files on the patent in this case.  Maryland’s Rule 1.10(b) recognizes screening, but the court noted that not only was Pierce not screened from this case, she was working on it.  The court ordered that Pierce and her firm be disqualified. 

Nes v. Anne Arundel County, 2004 U.S. App. LEXIS 7965 (4th Cir. April 22, 2004).  Plaintiff sued defendant using Firm A.  Defendant has at all times used Firm B.  Plaintiff’s lawyer moved from Firm A to Firm C, and Firm C then became Plaintiff’s law firm.  After that move Firm A merged into Firm B.  Plaintiff then moved to disqualify Firm B.  The trial court, satisfied that Firm B had complied with Maryland Rule 1.10(b), denied the motion.  In this opinion the Fourth Circuit affirmed. 

Massachusetts

Unique rule allowing screening in some cases. Rule 1.10(d) (1) & (2).  The rule seems to allow screening if the moving lawyer has "material" information about the matter from the old firm.  The rule draws the line, however, where the information is "substantial material information" or where the moving lawyer had "substantial involvement" in the matter at the old firm.  A federal district judge, in refusing to approve a screening arrangement, applied the rule according to its terms, United States Filter Corp. v Ionics, Inc., 189 F.R.D. 26 (D. Mass. 1999).  For cases pre-dating the new rules that expressed some approval of screening, see First National Bank of Ipswich v. Peabody Gunner Hill, No. 92-5172-J (Sup. Ct. Aug. 2, 1993; and Thomalen v. Marriott Corp., 1994 U.S. Dist. LEXIS 13650 (D. Mass. 1994).

In Alere Inc. v. Church & Dwight Co., Inc., 2012 U.S. Dist. LEXIS 45475 (D. Mass. March 31, 2012), applying the rule according to its terms, the court denied a motion to disqualify.

O'Donnell v. Robt. Half Int'l, Inc., No. 04-12719-NMG (D. Mass. June 29, 2010).  Employment class action.  Law Firm P represented the plaintiffs; Law Firm D represented the defendants.  Lateral worked at Firm D for one summer and about nine months after law school.  While at Firm D, Lateral had some exposure to this case.  Lateral was laid off and shortly thereafter went to work at Firm P.  While the conlficts issues raised by Lateral remained, this case was settled.  Lateral eventually left Firm P.  After Lateral departed, Firm P filed, in New Jersey, a very similar case against these defendants on behalf of other plaintiffs.  Defendants in this case sought an order preventing Firm P from handling the New Jersey case.  After carefully parsing Massachusetts' unique version of Model Rule 1.10, the district judge in this case denied the motion.  The First Circuit summarily affirmed, Moore v. Robt. Half Int’l, Inc., No. 10-1809 (1st Cir. Feb. 22, 2011).  Because of the uniqueness of the Massachusetts rule, we will not repeat the district court's rather lengthy analysis.  Law Firms subject to that rule would do well to read the opinion.

Inverness Medical Switzerland GMBH v. Acon Laboratories, Inc., 2005 U.S. Dist. LEXIS 12332 (D. Mass. June 23, 2005).  In this patent infringement action Firm A represents Plaintiff, and Firm B is local counsel for Defendant.  While this case was pending, two lawyers moved from Firm B to Firm A.  Accordingly, Defendant moved to disqualify Firm A.  The only involvement of the two lawyers in this case at Firm B was to spend a limited amount of time analyzing whether Firm B had a conflict of interest.  Both lawyers swore that they had no involvement in, or knowledge about, the merits of this action.  The court enforced Massachusetts Rule 1.10(d)(1) as written.  Because the information the moving lawyers had was not “material,” the court denied the motion.

Alnylam Pharm., Inc. v. Tekmira Pharm. Corp., 2012 U.S. Dist. LEXIS 136462 (D. Mass. Sept. 24, 2012).  Firm A represents Plaintiffs in this patent suit.  Firm B represents Defendant.  Lawyer moved from Firm B to Firm A in 2012.  While at Firm B Lawyer worked on a Defendant matter and billed 137 hours to the matter in one month.  When Lawyer moved, Firm A set up a screen.  Defendant moved to disqualify Firm A.  In this opinion the court denied the motion.  The court said that while Lawyer did work on a matter involving a license agreement that was involved in this case, the license agreement was not central to the issues in this case, and, thus, the matters were not "substantially related."

For an excellent guide to clearing conflicts for new lawyers, see Boston Op. 2004-1 (May 2004).  Among other things, it discusses the extent to which a new lawyer should be able to identify his clients at his old firm.  It also recommends that just one or several people at the new firm should be exposed to this information.

Michigan

Lawyers - Yes. Rule 1.10(d) (2). See Michigan Op. R-4 (1989). Town & Country Apartments v. City of Wixom, 2003 Mich. App. LEXIS 898 (Mich. App. April 8, 2003).  In this property tax appeal case, the lawyer at his new firm signed a motion for extension of time to file and exchange a valuation disclosure.  The court held that the firm should be disqualified.

Sixth Circuit says that ethics rules control.  National Union Fire Ins. Co. v. Alticor, Inc., 466 F.3d 456 (6th Cir. 2006), modified, 472 F.3d 436 (6th Cir. 2007) .  The Michigan rule requires anyone relying upon a screen to notify the tribunal.  Because a law firm failed to do it here, the court held the screen to be ineffective.  Other cases holding that failure to promptly notify the tribunal invalidates screen in Michigan are Town & Country Apts. v. City of Wixom, 2003 Mich. App. LEXIS 898 (Mich. App. Apr. 8, 2003); and Cobb Publ. Inc. v. Hearst Corp., 891 F. Supp. 388 (E.D. Mich. 1995).

Shaw v. London Carriers, Inc., 2010 U.S. Dist. LEXIS 17686 (W.D. Mich. March 1, 2010).  While it is not clear from this very brief opinion, it appears that the plaintiff's law firm attempted to set up a screen for a new lawyer pursuant to Michigan Rule 1.10, but failed to notify the court as required by the rule.  For that reason the magistrate judge disqualified the law firm.  In this opinion the district judge affirmed.

Former Judge. WNC Housing LP v. Sherborne Dev. Co. LLC, 2016 WL 743368 (Mich. App. Unpub. Feb. 23, 2016). In a brief discussion of Michigan’s former-judge screening rule, which requires “prompt” notification, the court held that a three-month delay in making the notification is not enough, without a showing of harm, to disqualify the former judge’s new law firm.

Non-Lawyers - Probably.  Mich. Ops. RI-284 (1996) & RI-115(1992).

Minnesota

Lawyers – No.  Lennartson v. Anoka-Hennepin Independent School District No. 11, 662 N.W.2d 125 (Minn. 2003).  Minnesota has a harsh anti-screening version of Rule 1.10 similar to Massachusetts’ version of Rule 1.10, and to the effect of the New York Court of Appeals’ Kassis decision (see New York below).  The Minnesota rule is identical to Restatement Section 124.  In this decision the Minnesota Supreme Court has held that the rule means what it says.  A lawyer had taken a deposition at her old firm in a case against what has become her new firm.  She had read the entire file in preparation for the deposition.  When she changed firms, the new firm erected a screen.  Her old client moved to disqualify the new firm.  The trial court granted the motion.  The appellate court reversed.  The Supreme Court reversed the appellate court.

Fant v. City of Ferguson, 2017 WL 3392073 (E.D. Mo. Aug. 7, 2017). For several years Lawyer worked at Firm 1. While there he worked on cases involving several of the plaintiffs in this case. Lawyer moved to Firm 2 in April 2017. Firm 2 represents the defendant in this case. Firm 2, at some point, erected a screen between Lawyer and this case. The plaintiffs moved to disqualify Firm 2 in this case. In this opinion the court granted the motion. The court noted that Missouri is not a screening state.

Mediator. Bradley v. Kelley, 2014 Minn. App. Unpub. LEXIS 743 (Minn. App. July 21, 2014). Plaintiff sued Defendants for trespass of Plaintiff’s easement. Defendants retained Lawyers X and Y to represent them. The case was mediated. Mediator was a member of Law Firm ABC. After the mediation concluded, Lawyers X and Y joined Firm ABC. Plaintiff moved to disqualify Firm ABC. The trial court denied the motion. In this opinion the appellate court affirmed. The court noted that, while the screen separating the mediator from Lawyers X and Y was informal, it complied with Minnesota’s version of MR 1.12. The mediator also averred that he shared no information about the case with Lawyers X and Y.

Mississippi

Lawyers - Probably not. Rule 1.10(b).  But, in Mississippi State Dept. of Health v. Singing River Hospital, No. 1998-CC-00968 (Miss.), the court approved a screen.  Also see Aldridge v. State, 583 So. 2d 203 (Miss. 1991), which involved a public defender who became a prosecutor while one of his appointed cases was pending.  The court held this should not disqualify the entire prosecutor’s office if the office could show an effective screen.

Non-lawyers - Watch out.  The court in Owens v. First Family Fin. Services, Inc., 379 F. Supp. 2d 840 (S.D. Miss. 2005), expressed hostility to screening for non-lawyers.  More recently, the Mississippi Bar expressed approval of screening of non-lawyers in Miss. Op. 258 (Dec. 1. 2011).

Missouri

Lawyers - Probably not. Rule 1.10(b), Mo. Op. 2005-0030 (undated), and Mo. Op. 2003-0007 (undated). But, see School Dist. of Kansas City v. AcandS, Inc., 1989 U.S. Dist. LEXIS 10009 (W.D. Mo. 1989); and Hallmark Cards, Inc. v. Hallmark Dodge, Inc., 616 F. Supp. 516 (W.D. Mo. 1985).

In East Maine Baptist Church v. Regions Bank, 2007 U.S. Dist. LEXIS 76430 (E.D. Mo. Oct. 12, 2007), the court held that if the moving lawyer actually represented the client at the old firm, the entire new firm would be disqualified without regard to whether the lawyer had learned any confidences.


Non-Lawyers - Probably. See Comment [4] to Missouri Rule 4-1.10(a).

Rittinger v. Healthy Alliance Ins. Co., 2016 WL 827960 (E.D. Mo. March 3, 2016). The underlying issue was whether the judge should recuse himself because one of his law clerks had a conflict of interest. The plaintiff’s lawyer claimed that the clerk’s conflict should be imputed to two other clerks and to the judge. In denying recusal, the court responded that the conflicted clerk “has been isolated from this case.”

Montana

Lawyers - Probably. Rule 1.10(c)(1).

Krutzfeldt Ranch, LLC v. Pinnacle Bank, 2012 Mont. LEXIS 15 (Mont. Jan. 31, 2012).  In this case Borrowers sued Bank for breach of a loan agreement.  Borrowers' lawyer retained Tax Lawyer to advise Borrowers on how to structure a possible settlement.  Without warning to Borrowers, Tax Lawyer joined the law firm representing Bank ("Bank Firm").  When Borrowers received an announcement of this change, they immediately moved to disqualify Bank Firm.  The trial court denied the motion, holding that Borrowers were former clients of Tax Lawyer and that Bank Firm's screen of Tax Lawyer prevented Bank Firm's disqualification.  In this opinion the supreme court reversed.  After analyzing what transpired when Tax Lawyer joined Bank Firm, the court concluded that the Borrowers remained clients when the move occurred.  Thus, Bank Firm's disqualification became "automatic."  The court also added that even under a former client analysis, the screen erected by Bank Firm was not timely.


Nebraska

Lawyers - Probably not.  Rule 1.9(b).  See State of Nebraska ex rel. FirsTier Bank, N.A. v. Buckley, 503 N.W.2d 838 (Neb. 1993).

Non-Lawyers - Probably.  In Creighton Univ. v. Hickman, 512 N.W.2d 374 (Neb. 1994), the court said no screening for non-lawyers.  Neb. Op. 94-4 followed, providing the same.  In 2005 Nebraska adopted a version of Model Rule 1.9, which provided, at Rule 1.9(e), that "support persons" could be screened.

Nevada

Lawyers - Probably. Rule 1.10(e).  See Edwards v. 360 [degrees], 189 F.R.D 433 (D. Nev. 1999); Coles v. Arizona Charlie's, 1997 WL 465416 (D. Nev. 1997); Ciaffone v. Eighth Judicial Dist. Ct., 945 P.2d 950 (Nev. 1997); and Ogilvie v. Eighth Judicial Dist. Ct., No. 28374 (Nev. 1996).

Gonzales v. Shotgun Nev. Invs., LLC, 2016 WL 4548675 (D. Nev. Aug. 31, 2016). The key finding invalidating a screen was that the lawyer's earlier work for the moving party had been "substantial," with the meaning of Nevada Rule 1.10.


"Settlement Judge."  Ryan's Express Trans. Svcs., Inc. v. Amador Stage Lines, Inc., 2012 Nev. LEXIS 66 (Nev. June 14, 2012).  Lawyer A from Law Firm acted as a "settlement judge" in an attempt to settle this case.  That was unsuccessful. Subsequently Lawyer B, representing the defendant, joined Law Firm.  The plaintiff moved the court in this appeal to disqualify Law Firm.  In this opinion the court remanded the case to the trial court to make a factual determination whether the screen Law Firm erected was adequate to prevent Law Firm's disqualification.  The court said Nevada Rule 1.12(c) applied, and the court laid out the principles that should guide the trial court in making its ruling.  Fairly routine analysis of screening.



New Hampshire

Lawyers - Probably not. Rule 1.10(b). State of New Hampshire v. Addison, 2014 N.H. LEXIS 27 (N.H. March 7, 2014) Lawyer worked for an appellate defender’s office. While there she worked on the appeal of Party X, who had been sentenced to death. During the pendency of the case Lawyer joined the attorney general’s office. Party X moved to disqualify the entire AG’s office. In this opinion the court ruled that a screen would prevent disqualification of others in the office. In addition to the screen, the court noted that a lawyer working on the appeal, not the trial, would not be privy to the kinds of confidences the trial counsel would have gained.

New Jersey


Mody v. Quiznos Franchise Co., 2012 N.J. Super. Unpub. LEXIS 1719 (N.J. App. July 18, 2012).  Lawyer moved to the plaintiffs' law firm.  At his prior firm Lawyer had done substantial work for the defendants in nearly identical cases.  The defendants moved to disqualify the plaintiffs' firm.  The trial court denied the motion.  In this opinion the appellate court reversed.  First, in a fact intensive discussion of Lawyer's work for the defendants the court found that Lawyer had had "primary responsibility" for the earlier cases within the meaning of New Jersey's version of MR 1.10.  Second, the court rejected the plaintiffs' firm's screen as being oral rather than written as required by the rule.

In re Gabapentin Patent Lit., 407 F. Supp. 2d 607 (D.N.J. 2005).  This is a multi-district patent infringement case.  Law Firm P represented one of the plaintiffs.  There are five defendants, D1, D2, D3, D4, and D5.  Law Firm D represents D1.  Lawyers X and Y were with Firm D and had principal responsibility for the representation of D1 in this case.  D1 had a joint defense agreement with D2, D3, D4 and D5.  While with Firm D, and pursuant to the joint defense agreement, X and Y became privy to many confidences of the other defendants.  X and Y left Firm D to join Firm P.  Firm P obtained D1’s consent to bring in X and Y, provided a screen be created.  That happened, but then D2, D3, D4, and D5, parties to the joint defense agreement, but not parties to D1’s consent, moved to disqualify Firm P.  The court granted the motion.  The essential holding was that because X and Y had actually become privy to the defendants’ confidences pursuant to the joint defense agreement, Firm P should be disqualified, notwithstanding the screen and D1’s consent.  This is consistent with the majority rule in the joint defense cases.

Opalinski v. Robert Half Int'l, Inc., 2011 U.S. Dist. LEXIS 28095 (D.N.J. March 18, 2011).  This is a Fair Labor Standards Act case brought by former employees of the defendants regarding the defendants' alleged failure to pay overtime.  Lawyer A, a member of a small firm ("Firm A"), sought leave to appear in this case pro hac vice for the plaintiffs.  The defendants objected alleging that Lawyer A and Firm A had a conflict of interest.  The alleged conflict concerned Lawyer B.  First, Lawyer B had, for a brief time worked at Firm B, which represents the defendants in this case.  Earlier Firm B had represented the defendants in a very similar FSLA case in Massachusetts ("the Mass. case").  While at Firm B Lawyer B worked 7 hours on the Mass. case.  Lawyer B then moved to Firm A, which was representing the plaintiffs in the Mass. case.  Firm A erected a screen between Lawyer B and the Mass. case.  Nevertheless, the defendants in the Mass. case moved to disqualify Firm A in that case.  The court in the Mass. case granted the motion.  Lawyer B left Firm A before Lawyer A sought leave to appear in this case.  Nevertheless, the defendants in this case objected to Lawyer A's admission.  The magistrate judge granted Lawyer A's admission.  First, the court held that its ruling was based upon New Jersey's version of Model Rule 1.10(b) (Lawyer B had already left Firm A, and no one remaining at Firm A had any knowledge of defendants' confidences in the Mass. case.).  Second, the magistrate judge held that it would not apply Massachusetts ethics rules, which are different from New Jersey's, in this New Jersey case.  It is interesting to note that one of the facts that influenced the Massachusetts judge in disqualifying Firm A in the Mass. case was that, while at Firm B, in addition to working 7 hours on the case, Lawyer B had attended a meeting of the practice group that was handling the Mass. case.  In this opinion the district judge affirmed the magistrate judge.

Martin v. Atlanticare, 2011 U.S. Dist. LEXIS 122987 (D.N.J. Oct. 25, 2011).  Lawyer moved from the firm representing the defendant ("Old Firm") to the firm representing the plaintiff ("New Firm").  While at Old Firm Lawyer worked extensive hours on this case.  New Firm claims to have screened Lawyer from the case, but the screen was never memorialized in writing.  In this opinion the magistrate judge granted a motion to disqualify Lawyer.  In a fact-intensive analysis the judge ruled that Lawyer had "primary responsibility" on the case at Old Firm, within the meaning of N.J. Rule 1.10.  The court also ruled that New Firm's screen was inadequate, in any event.  [The opinion is a pretty good analysis of "primary responsibility,"  a concept included in the screening rules of several states.]

Ford Motor Co. v. Edgewood Properties, Inc., 2011 U.S. Dist. LEXIS 123348 (D.N.J. Oct. 25, 2011).  Parties A and B are in an environmental dispute with Ford, including this case.  Lawyer initially represented Party A involving this matter while at Firm A.  Parties A and B had entered into a common interest agreement, pursuant to which Lawyer became privy to Party B's confidences.  Lawyer left Firm A and joined Firm B.  Firm B appeared for Ford.  Parties A and B moved to disqualify Firm B.  In this opinion the court granted the motion.  In an unremarkable substantial-relationship analysis the court found Lawyer's work for Parties A and B to be substantially related to this case.  Not only did Lawyer directly formerly represent Party A, Lawyer had had an "implied attorney-client relationship" with Party B because of the terms of the common interest agreement and the fact that Lawyer became privy to Party B's confidences.  Although Firm B purported to establish a screen, the court said the screen would not work because Lawyer had been primarily responsible for the work for Party A in the earlier representation.  Lastly, pursuant to Rule 1.10, the court found that the entire Firm B should be disqualified.

Kane Properties, L.L.C. v. City of Hoboken, 2011 N.J. Super. LEXIS 204 (N.J. App. Div. Nov. 16, 2011).  A land owner ("Owner") obtained zoning variances from a board of adjustment.  An objector ("Objector") appealed to the city council.  When the matter reached the city council, the lawyer for Objector ("Lawyer") had become a part-time lawyer for the council.  Lawyer recused himself from the council's deliberation but attended meetings where the matter was discussed, allowed one of his memoranda to be used by substitute counsel, and gave procedural advice on the matter to the council.  The council reversed the board of adjustment.  Based upon Lawyer's "limited" involvement in the council's deliberations, the appellate court, in this opinion, reversed and remanded so that the council could consider the record without Lawyer.

Electronic File and Rule 1.10(b). Estate of Kennedy v. Stuart A. Rosenblatt, C.P.A., 2016 WL 6543629 (N.J. App. Div. Nov. 4, 2016). This opinion’s description of the parties and the procedure is somewhat befuddling (to us, at least).  Therefore, we will take extreme liberties in simplifying the facts in order to reach the key issue for this audience: the application of N.J. Rule 1.10(b) (same as M.R. 1.10(b)) to electronic files remaining in the law firm when the lawyers handling the matter in question have left, taking the paper files with them. Law Firm defended a lawyer (“Defendant Lawyer”) in a prior malpractice case (“Prior Case”). After Prior Case was dismissed, the lawyer representing the plaintiff in Prior Case (“Lawyer”) joined Law Firm. Lawyer then filed the same case as before, including against Defendant Lawyer (“This Case”). In This Case Defendant Lawyer moved to disqualify Law Firm. Law Firm defended the motion because the lawyers working on Prior Case had left and taken the paper files with them. The issue was whether the electronic files left behind disqualified Law Firm under Rule 1.10(b)(2). The trial court granted the motion. In this opinion the appellate court reversed “conditionally” and remanded for further proceedings. Law Firm had erected a “screen” around the electronic files. However, the court said that if someone in Law Firm looked at the substance of the retained electronic files, Law Firm should be disqualified. If, however, all Law Firm lawyers did was look at metadata to determine whether anybody in Law Firm had looked at the files substantively, then the Law Firm should not be disqualified. The appellate court felt that New Jersey’s recent adoption of its version of M.R. 1.6(b)(5) (N.J. Rule 1.6(d)(5)), helped inform its decision here, even though the N.J. version came after the events in question. The opinion also discusses the nuts and bolts procedure that should be followed in resolving the remaining issues, and directs Law Firm to delete any electronic files remaining.
Non-Lawyers - Probably.  N.J. Ops. 633 (1989) & 665 (1992).

New Mexico


Roy D. Mercer, LLC v. Hon. Matthew G. Reynolds, No 33,830 (N.M. Dec. 6, 2012).  Lawyer, while at Law Firm A, participated in this case for Party A.  Lawyer went to Law Firm B, which represented an opposing party in this case.  Firm B erected a screen.  Nevertheless, in this opinion, the court applied New Mexico's version of MR 1.10 according to its terms.  The New Mexico rule says a screen will not work where the moving lawyer had a "substantial role" in the matter at the lawyer's first firm.  The court found that the range of duties that Lawyer had on this case at Firm A constituted a "substantial role" and disqualified Firm B.

Non-Lawyers - Hard to say. Ullman v. Denco, Inc., No. 14-cv-843 SMV/GBW (D.N.M. April 22, 2015). [Note: we learned of this case in an email bulletin from Keith Swisher at dqed.com.] Law Firms A & B are opposite in this case. B hired away A’s sole paralegal, who had worked on this case. B set up a timely screen. A’s client moved to disqualify B. In this opinion the magistrate judge granted the motion. The judge recognized the majority rule that non-lawyers may be screened where lawyers may not. However, the court was influenced in this case primarily by the following: the minimal prejudice to B’s client of disqualification; the importance of the information the paralegal learned at A; the appearance to the public of the timing of the hiring; and the size of B.

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Changing Firms - Screening - Part II

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