Monday, August 15, 2011

Ethics Opinion Affirms Suitability of Screening for Non-Lawyer Staff in Los Angeles

[h/t to Bill Frievogel]. The Los Angeles County Bar Association Professional Responsibility and Ethics Committee recently issued an opinion (524) that affirms the ability of an ethical screen to work in situations where non-lawyers move between firms, even when they possess confidential information relating to an active matter between the two firms.

Client consent is not required, but in such instances opposing counsel should be notified.

The committee calls out the elements of an effective screen, which include:
  • “witten notification to all legal staff to isolate the screened employee from communication regarding the matter”
  • "prevention of the screened employee’s access to the relevant files"
  • "admonishment of the employee not to discuss the prior matter with the new firm"
  • and "a search of the firm’s records to ensure that all cases on which the new employee’s former firm is opposing counsel are identified"
The opinion highlights the important of a screening response that address electronic information:
  • “The Committee believes that electronic security is also an important element of an effective screen. Electronic files should be password-protected and the password withheld from screened employees.”
And recommends regular notifications and acknowledgment tracking regarding the screen:
  • “Effective practices may also include documenting the continued existence and impermeability of the screen, for example by periodic electronic or written reminders to all staff or by requiring periodic certification by screened staff that they have not breached the screen.”

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