Monday, September 26, 2011

Article: Ethical Screen Standards (Industry Trends, Recommended Approach, ABA vs. New York Rules)

Devika Kewalramani, partner and Co-Chair of Moses & Singer's Legal Ethics & Law Firm Practice Group, published an interesting article on ethical wall requirements, including the need for software-driven protections and logging/auditability: “Ethical Screens: Building Electronic Barriers”:
  • "There was a time when locked file cabinets provided the necessary separation of documents. But with client documents now primarily created, revised and saved electronically, client information resides primarily on computers, not in file cabinets. For this reason, there is growing concern about how to create an ethical screen that protects electronic client information."
  • "The ABA commission observed that technological advances have made client information more accessible to the entire law firm, and that screening should require more than making physical documents inaccessible. Screening should require protection of electronic information as well."
The article provides an excellent deep dive comparing and contrasting ABA Model Rules and New York State and Federal Rules and case law:
  • "New York state and federal courts have allowed the use of ethical screens to avoid imputed disqualification of a firm beyond the scope of the N.Y. Rules... In 2005, the Second Circuit, in Hempstead Video Inc. v. Valley Stream, held that preventive measures such as a formal screen or de facto separation can effectively guard against any sharing of client confidential information. The federal courts have refused disqualification in some cases where screens were instituted." [See: Third party summary of Hempstead as well as the text of the written decision.]
And it calls out important recommendations for effective technological screening measures:
  • The need for electronic restrictions: "Block and track access. Protecting electronic client information is critical. The Southern District in Papyrus concluded that the electronic screening measures adopted by the firm adequately segregated the disqualified lawyer from the case, 'thereby immunizing [the firm] from [the disqualified lawyer's] taint.' ... In addition, the firm implemented a monitoring system that could track a lawyer's access to certain electronic files."
  • Maintain logging and auditable compliance reporting: "When confronted by a disqualification motion, conduct an audit of the firm’s document management system to confirm that no prohibited documents have been accessed by the conflicted lawyer."
  • Institute proactive monitoring: "In accordance with the electronic audit measure, track the conflicted lawyer's access to relevant electronic files to verify whether the conflicted lawyer accessed relevant electronic files."
  • Extend and integration protections across other software systems lawyers use: "Exclude the conflicted lawyer from personally entering time on a client matter numbers in the firm's time and billing system unless he/she is provided access on an as need basis or unless that system does not permit one lawyer to look at the time recorded by other lawyers."

No comments:

Post a Comment