A few of my colleagues and I recently presented at the Association of Corporate Counsel, Central Pennsylvania Chapter meeting. The theme for the day was "Defending the Corporate House," and our presentation was Navigating Conflicts of Interest in the In-House and Outside Counsel Context.

If a law firm (for purposes of the Rules of Professional Conduct, an in-house counsel office is generally a "firm") has an attorney with a conflict, there is still hope. The Pennsylvania Rules of Professional Conduct allow for a "screen" - a way to block the conflicted attorney out of any involvement in the matter, and therefore cutting off the imputation of his or her conflict of interest to the rest of the firm:
Rule 1.10. Imputation of Conflicts of Interest: General Rule
(b) [T]he firm may not knowingly represent a person in the same or a substantially related matter . . . unless:
(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate client to enable it to ascertain compliance with the provisions of this rule.When is screening effective? In Pennsylvania, courts look at multiple factors:
(1) the substantiality of the relationship between the attorney and the former client,Dworkin v. General Motors Corporation, 906 F. Supp. 273 (E. D. Pa. 1995). And then, what makes the screen effective?
(2) the time lapse between the matters in dispute,
(3) the size of the firm and the number of disqualified attorneys,
(4) the nature of the disqualified attorney's involvement and
(5) the timing of the wall.
(1) the prohibition of discussion of sensitive matters,James v. Teleflex, Inc., 1999 U.S. Dist. LEXIS 1961 (E. D. Pa. 1999)(citing Dworkin, 906 F. Supp. at 280).
(2) restricted circulation of sensitive documents,
(3) restricted access to files,
(4) strong firm policy against breach, including sanctions, physical and/or geographical separation, to determine its effectiveness.
This is definitely a tricky issue, and it requires some thoughtful analysis to pull off an effective screen.
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