Wednesday, April 13, 2011

Canadian Screening : Non-Consensual Ethical Walls Upheld

[h/t to Bill Frievogel] who notes a recent Canadian decision affirming ethical screens for addressing conflicts tied to lateral hires:
  • "The Law Society of Upper Canada has a non-consensual screening rule for lawyers changing firms. In this opinion the court denied a motion to disqualify, holding that the receiving firm had complied with the rule."
The actual decision [Dwyer v. Mann et al, 2011 ONSC 2163 (CanLII)] addresses a "side switching" lawyer, who joins opposing counsel on a matter and is promptly and effectively screened:
  • "Well in advance of Mr. Bittle’s change of employment, and having recognized the potential conflict of interest, Lancaster, Brooks took steps to ensure that no information would be passed concerning this case by Mr. Bittle to anyone in the Lancaster, Brooks firm."
All information related to the matter was segregated, and all associated with the matter signed an affirmative pledge not to discuss the matter or share any information with the screened lawyer. Opposing counsel consistently objected to the screen and eventually moved to disqualify. The court denied, noting that current rules permit non-consensual screening so long as it is demonstrably effective:

  • "Regarding the matter of timing and adequacy, as discussed more fully below, the Lancaster, Brooks firm acted in a timely manner to put in place effective safeguards... It is difficult to imagine what more could be done to protect the confidentiality of the plaintiff’s information."

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