Thursday, March 18, 2010

California Bar Rejects Recommendation to Adopt Lateral Screening Rules

As reported by BNA, the California State Bar's board of governors adopted several proposed changes to the state's rules of professional conduct. However, one recommendation made by the drafting commission that was rejected was a motion to relax screening rules to enable ethical walls for lateral hires.

The commission proposed adopting some, but not all of the provisions of the recently changed ABA Model Rule 1.10 on conflicts, imputation and screening. The current rules do not address imputation, and case law on screening itself is murky on the topic. Unlike the Model Rule, the recommendations from the commission would not allow unilateral screening when the lateral attorney played a substatial role in the prior representation. They also added additional new requirements, including a provision that "...the screening firm must agree to provide to the client, at the firm’s expense, the opportunity to retain an independent lawyer to review and assess the firm’s screening procedures, and provide access to that lawyer." However, even with this more limited scope and stricter enforcement standards, the change failed to pass.

Keven Mohr, a law professor and consultant to the rules commission told BNA in an interview that public comment was nearly unanimous in support of the broader screening rules for laterals. He suggested that it may still be possible that the board of governors will revisit these specific rules, depending on future public comment.

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