Tuesday, November 20, 2012

Playbooks, Disqualifications & Ethical Screens

Earlier this year we pointed out an interesting discussion between Monroe Freedman, Professor of Law at Hofstra Law and John Steele, publisher of the Legal Ethics Forum. See: Conflicts of Interest -- Is "Playbook" Information (aka "Special Insight" into Former Client Thought Patterns/Strategies) a Basis for Disqualification?

The ever-watchful Bill Frievogel highlights a recent case where a playbook play played a key role (Yhan v. Hovensa, L.L.C., 2012 U.S. Dist. LEXIS 161593 (D.V.I. Nov. 12, 2012). He summarizes:
  • "A lawyer in the plaintiffs' law firm ("Lawyer") worked at the defendant's law firm for three years until November 2011.  While at the defendant's firm Lawyer worked on employment related cases for the defendant, but not this case.  The defendant moved to disqualify the plaintiffs' law firm. 
  • The magistrate judge granted the motion, implicitly adopting the playbook approach to the substantial relationship test. 
  • The magistrate judge also rejected the plaintiffs' claim that Lawyer had been screened at her new firm, because the firm had not complied with the notice provision of MR 1.10 (territorial courts and the federal District of Virgin Islands have adopted the ABA Model Rules). 
  • In this opinion the district judge vacated the magistrate judge's order and remanded the case to the magistrate judge to develop more fully the evidentiary basis for the magistrate judge's finding of substantial relationship.  The district judge did not address the screening issue."
It's unclear if an effective screen would have prevented the disqualification. The notification requirements of Model Rule 1.10 include requirements that:
  • (ii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule, which shall include a description of the screening procedures employed; a statement of the firm's and of the screened lawyer's compliance with these Rules; a statement that review may be available before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures;
  • (iii) certifications of compliance with these Rules and with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the former client's written request and upon termination of the screening procedures.

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