Thursday, March 15, 2012

Elements of an Effective Ethics Screen

Michael Downey, litigator and legal ethics lawyer with Armstrong Teasdale provides a thorough and nuanced review of differences in state rules of professional conducts ethical screening standards for law firms: "Elements of an Effective Ethics Screen." (Published by ABA/BNA: [Text Version] [PDF Version]

Downey notes that state rules of professional conduct are “inconsistent on what elements are required for a screen to be effective.” He goes on to provide an excellent summary of different requirements for a variety of screening scenarios:
  • Lawyer who works on a matter at a prior firm
  • Nonlawyer prior work
  • Lawyer who works on a matter while a government employee
  • Lawyer previously involved in the matter as a judge
  • Where communication with prospective clients reveal confidential information
Common screen standards apply to all situations including timeliness, notification and enforcement requirements. He notes that best practices include:
  •  “Implement data access controls to prevent screened lawyers from accessing all digital files and documents relating to the screened matter…”
  • Monitor and audit the screen on a regular basis to ensure continued compliance.”
  • Send reminders of screens on a periodic basis and when circumstances make such notices appropriate. Examples would include an additional screened person joining the firm or a screened lawyer changing offices.”
  • “Audit specific screens and the firm’s screening procedures on a periodic basis to ensure that the firm is taking proper steps to implement and maintain its screens. Particular attention should be paid to changes in information or document management, or personnel responsibilities, that may require changes for screens to be effective.”
  • “Preserve records establishing that the client and appropriate firm personnel received notice and demonstrating that a particular screen was effective throughout its duration.”
Interestingly, Downey notes that decommissioning screens is another important area to consider (and one firms often overlook): “…screens should be discontinued when they are no longer necessary. This reduces the number of screens in effect in the event that a firm later needs to defend its screening policy.”

These elements highlight the value of modern screening software that automates creation, notification, enforcement and auditing processes. Such an approach can also be extended to interface with firm matter closing processes or update screens and matter teams based on lawyer billing practices (for example, notifying an administrating regarding screened matters that have not seen active work in a predetermined time and may warrant review by risk stakeholders to see if they are still active.)

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