Wednesday, November 2, 2011

"Side Switching" Decision: When Screening, It Helps to Actually Screen

[h/t to Bill Frievogel]. In Martin v. AtlantiCare, 2011 U.S. Dist. LEXIS 122987 (D.N.J. Oct. 25, 2011) the US District Court for the District of New Jersey disqualified a side switching lawyer.

A lawyer who performed material work for one side of a lawsuit moved to the firm representing the other side. The new firm argued it screened the incoming lawyer, who performed limited work on the matter.

But a judge disagreed, ruling that the lawyer had "primary responsibility" on the matter, which was enough to trigger the disqualification. The court also noted that even if the lawyer was less involved, the new firm's screening measures were significantly lacking and the firm would be disqualified on those grounds due to facts including:
  • The screening notification was only oral, with no written document distributed among firm personnel
  • The firm admitted that it did not even have a general written screening policy
  • No notice was giving to opposing counsel regarding the movement of the lawyer, the screening of the lawyer or the screening measures employed
  • Physical materials were not secured. The oral notification instructed that she "can't touch this file" and "can't go into that file drawer herself."
  • Electronic information was not secured. The oral notification instructed the affected lawyer: not to "click on AtlantiCare on the case management system."
Interestingly, the opinion notes: "Although there is no definitive New Jersey guidance on the elements of an effective screen, the Court has no hesitation in finding CM's procedure inadequate." It goes on to repeatedly drive home the extent to which the disqualified firm missed the mark: "the file was not specially secured or 'kept under lock and key,' LG and CM's employees did not acknowledge in writing CM's procedures, and LG was not 'locked out' of the AtlantiCare file on CM's computer system."

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