State Bar of Michigan
home member area contact us


ethics



 print this page


for members
SBM general information

member directory

admissions, ethics, and
   regulation


diversity & inclusion

justice initiatives

member services

practice management
   resource center


public policy resource
   center


publications and
   advertising


research and links

sections & committees


ethics for members
ethics developments
ethics opinions
TAON (trust accounts)


from the courts
opinion searching
virtual court


for the public
public resources
media resources


giving opportunities
a lawyer helps
access to justice
   campaign

Ethics Opinion

print this page

R-4

September 22, 1989

SYLLABUS

  1. A lawyer who transfers from one law firm in which the lawyer is a principal -- and is thus rebuttably presumed to have acquired information protected by MRPC 1.6 and 1.9(b) as to clients of the former firm -- to another, where the new firm is involved in actions or proceedings materially adverse to clients of the former firm, is disqualified from all matters involving clients of the former firm which are "the same or substantially related" to matters with which the transferring lawyer had involvement while associated with the former firm.
  2. To avoid similarly disqualifying the firm to which the thus disqualified lawyer transfers, the transferring lawyer must be screened from any participation or fee sharing as to the related actions and proceedings, or the new firm will be disqualified from continuing representation of existing, or undertaking representation of potential future clients in the related actions and proceedings.
  3. At a minimum, screening and fee segregation must include: (a) exclusion of the disqualified lawyer from any participation in the action; (b) instruction to all other lawyers in the firm (1) not to discuss the matter in the disqualified lawyer's presence, (2) not to allow the disqualified lawyer to view any documents or other material relating to the action or proceeding, and (3) not to receive any information from the disqualified lawyer concerning the matter; (c) moving files pertaining to the matter to a physically segregated area or marking them with special coding, and (d) segregation of fees derived from such professional representation, so that the disqualified lawyer does not, directly or indirectly, receive any portion of the fees.
  4. Any screening procedure must be installed immediately when the disqualified lawyer joins the new firm, or the new firm will be disqualified from continuing to participate in all such actions and proceedings.
  5. In addition to establishing screening procedures, the disqualified lawyer must immediately notify all affected tribunals concerning the change of employment, informing them of the screening and fee segregation procedures to be utilized. Copies of the notice must be provided to all other parties in the actions and proceedings.
  6. Screening and fee segregation procedures must remain in place until there is no possibility that information which is confidential under MRPC 1.6 or 1.9(b) might be utilized against a former client of the transferring lawyer, or for the benefit of the transferring lawyer or any third person; the transferring lawyer and the new firm must also remain vigilant to the indefinite future to assure that such confidences remain fully protected, and that screening procedures may be immediately invoked whenever new business warrants. Note, however, that in general, if new representation, even though involving litigation against a former client, does not implicate client confidences or secrets, then conflict considerations would not ordinarily preclude the lawyer from undertaking the new representation.
  7. Where the transferring lawyer is a principal in the former firm, rather than a junior associate, the number of situations in which screening procedures are necessary to avoid disqualification may increase by virtue of the presumption arising from MRPC 5.1(c)(2), which obligates principals in a law firm to be cognizant of the handling of all matters by their subordinates. Former principals would have the burden of persuasion as to any claim that they did not possess disqualifying confidential information.
  8. A law firm which, by virtue of a new hire, finds it necessary to erect such screening procedures may find it advisable to conduct training seminars for its employees, to heighten awareness of the applicable ethical constraints.

    References: MRPC 1.6, 1.7, 1.9(b), 1.10(a), 1.10(b), 1.11, 1.12, 3.5(b), 5.1(c)(2); 5.3; MCR 2.117(B)(3)(b), 8.122(3)(b); MCL 333.21515; Bernstein, Bernstein, Wile & Gordon v. Ross, 22 Mich App 117, 123 (1970); Crawford W. Long Mem Hosp v. Yerby, 373 SE2d 748 (Ga 1988); Feaheny v. Caldwell, 175 Mich App 291 (1989); NFC Inc v. General Nutrition Inc, 562 F Supp 332 (DC Mass 1983); Sunkist Growers Inc v. Benjamin H. Ansel Co, 221 USPQ (BNA) 1077 (Comm'r Pat 1984); Taxpayers Ass'n Inc v. Haber, 634 F2d 182 (CA 5 1981); United States v. Agurs, 427 US 97, 49 L Ed 2d 342, 96 S Ct 2392 (1976).

TEXT

A lawyer is a principal in a law firm, which is primarily engaged in tort defense litigation, including medical malpractice and product liability cases. The lawyer proposes to resign from the firm and associate as a partner or principal in another law firm which specializes in tort litigation, on behalf of plaintiffs. At the time this job transfer would occur, there are several matters pending in which the plaintiff firm represents interests opposite to the interests represented by the defense firm. In some of these cases, the lawyer is personally in charge of the defense, while in others the lawyer has not taken an active personal role.

In medical malpractice cases, the clients of the defense firm being sued by the plaintiff firm are mostly hospitals. The hospital clients of the defense firm have come to view the lawyer as the "partner in charge" of their accounts, even though the lawyer might not necessarily represent the hospital as counsel of record in each case under litigation handled by the defense firm. With respect to the hospital clients, the defense firm is merely one of several defense firms handling their malpractice litigation. Defense firm product liability cases largely involve representation of liability insurers. The lawyer has no personal involvement in any product liability case in which the plaintiff firm represents the opposing interest.

The lawyer is concerned about the ethical difficulties that may arise in the event the lawyer successfully negotiates to transfer to the plaintiff firm as a principal. The lawyer's first concern is existing cases, in which the two firms are on opposite sides. As subcategories the lawyer differentiates those cases in which the lawyer is personally counsel of record or in charge of the defense, and those in which the lawyer had no personal involvement in the defense and had not actually acquired information protected by the client confidentiality rules, MRPC 1.6 and 1.9(b), which are material to the matters in litigation. The lawyer acknowledges that the lawyer may well have initially reviewed file materials upon receipt of the case from the defense client, solely for the purpose of assigning the case, in the lawyer's role as principal, to another attorney within the office.

The second major category is future cases, subdivided into those in which the defendant is a hospital which formerly viewed the lawyer as the partner in charge, and thus as its individual attorney, and those in which the client of the defense firm was not personally represented by the lawyer while the lawyer was associated with the defense firm, and as to whom the lawyer never acquired information protected by MRPC 1.6and 1.9(b) material to the matters in litigation.

The lawyer asks what steps have to be taken by the plaintiff firm to comply with the screening requirements of MRPC 1.10(b)(1); the underlying concern of the question is that the plaintiff firm does not wish to be disqualified from continuing its representation in existing cases or accepting representation in future cases, in which the defense firm or its clients may be an adversary. It is inherent in the questions posed that the lawyer assumes, and properly so, that the lawyer is personally disqualified from further contact with any matters involving former clients of the defense firm which are "the same or substantially related" to a matter with which the lawyer had involvement while associated with the defense firm. The inquiry recognizes that, in general, disqualification of a member of a law firm results in disqualification of the firm.

MRPC 1.10(b) provides:

    "When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(b) that is material to the matter, unless:

      "(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and

      "(2) written notice is promptly given to the appropriate tribunal to enable it to ascertain compliance with the provisions of this rule."

MRPC 1.11 deals with the special, corollary problem of successive government and private employment. In relevant part, the Rule provides:

    "(a) Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation. No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, unless:

      "(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and

      "(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.

    ". . .

    "(d) As used in this rule, the term 'matter' includes:

      "(1) any judicial or other proceeding, application, request for ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter involving a specific party or parties; and

      "(2) any other matter covered by the conflict of interest rules of the appropriate government agency."

MRPC 1.10 and 1.11 must be understood in terms of MRPC 1.6 and 1.9(b), specifically referenced in MRPC 1.10(b). MRPC 1.6 provides in pertinent part:

    "(a) 'Confidence' refers to information protected by the client-lawyer privilege under applicable law, and 'secret' refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.

    "(b) Except when permitted under paragraph (c), a lawyer shall not knowingly:

      "(1) reveal a confidence or secret of a client;

      "(2) use a confidence or secret of a client to the disadvantage of the client; or

      "(3) use a confidence or secret of a client for the advantage of the lawyer or of a third person, unless the client consents after full disclosure."

MRPC 1.9(b) provides:

    "A lawyer who has formerly represented a client in a matter shall not thereafter:

      ". . .

      "(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client or when the information has become generally known."

MRPC 3.3, and the unquoted portions of MRPC 1.6, deal with situations in which the client has in essence committed perjury, and the lawyer is required to take steps to both avert a fraud on the court or other tribunal and to assuage any damage to third persons.

Although MRPC 1.6 and MRPC 1.9(b) are essentially unchanged from the Michigan Code of Professional Responsibility (MCPR), MRPC 1.10 and 1.11 are a substantial modification of MCPR DR 5-105(D) (conflict of interest and disqualification) and MCPR DR 9-101(B) (barring private employment in matters in which government attorneys had "substantial responsibility").

Under the MCPR, the use of screening procedures, which came to be known as the "Chinese wall defense" to law firm disqualification, was sometimes found inadequate to protect client confidentiality and to fulfill the letter and spirit of the Code, including Canon 9: Westinghouse Electric Corp v. Kerr-McGee Corp, 580 F2d 1311 (CA 7 1978), cert den 439 US 955 (1978); Fund of Funds, Ltd v. Arthur Andersen & Co, 567 F2d 225 (CA 2 1977); Central Milk Products Coop v. Century Food Stores Inc, 573 F2d 988 (CA 8 1978); Hull v. Celanese Corp, 513 F2d 568 (CA 2 1975); W.E. Bassett Co. v. H.C. Cook Co., 201 F Supp 821 (DC Conn 1961), aff'd per curiam, 302 F2d 268 (CA 2 1962).

In consequence of this restrictive attitude, commentators came to recognize that public policy concerns were not well served. For example, government agencies found it difficult to attract talented lawyers at entry level positions, because their opportunities for future employment in the private sector would be curtailed by firms in the field not wishing to be disqualified from continuing representation of existing clients solely for the purpose of accommodating a new hire. Kaufman, The Former Government Attorney and Canons of Professional Ethics, 70 Harv L Rev 657 (1957); Lacovara, Restricting the Private Practice of Former Government Lawyers, 20 Ariz L Rev 369 (1978); Note, The Former Government Attorney and the Code of Professional Responsibility: Insulation or Disqualification, 26 Catholic U L Rev 402 (1977); Note, Ethical Problems for the Law Firm of a Former Government Attorney: Firm or Individual Disqualification, 1977 Duke L J 512; Comment, Conflicts of Interest and the Former Government Attorney, 65 Georgetown L J 1025 (1977); Note, Business as Usual: The Former Government Attorney and ABA Disciplinary Rule 5-105(D), 20 Hastings L J 1537 (1977).

Similarly, it was noted that mechanical application of firm disqualification rules had undesirable effects beyond the confines of any particular litigation, and effectively made new associates slaves to their original law firm, unable to seek professional opportunity in other firms in the field, because the disqualification principle impeded their access to the market place. Note, Unchanging Rules in Changing Times: The Canons of Ethics and Intra-Firm Conflicts of Interest, 73 Yale L J 1058 (1964); Tybor, "Conflicts: When Big Isn't Better," National L J, May 7, 1979, at 1, col 4, 17, col 2; Note, The Chinese Wall Defense to Law Firm Disqualification, 128 U Penn L Rev 677, 679 (1980).

In other areas of the law, Michigan had already recognized the unfairness, and undesirability from a public policy perspective of limiting the competitive field for junior associates of professional enterprises handling confidential material. See, e.g., Bernstein, Bernstein, Wile & Gordon v. Ross, 22 Mich App 117, 123 (1970).

As time wore on, the concept of screening the disqualified lawyer from any contact with matters involving former clients or a former law firm, thereby insulating the acquiring law firm from disqualification, gained currency and respectability. Achieving judicial acceptance with the decision in Kesselhaut v. United States, 555 F2d 791 (Ct of Cl 1977), the movement gained adherents, one court at a time; Armstrong v. McAlpin, 625 F2d 433 (CA 2 1980) (en banc), vacated on other gds, 449 US 1106, 66 L Ed 2d 835, 101 S Ct 911, and disagreed with on other gds; Re Continental Investment Corp, 637 F2d (CA 1 1982), later app 637 F2d 8; NFC Inc v. General Nutrition Inc, 562 F Supp 332 (DC Mass 1983); Kadish v. Commodity Futures Trading Comm'n, 553 F Supp 660 (DC ND Ill 1982); Index Fund Inc v. Hagopian, 107 FRD 95 (DC SD NY 1985); Bauunter-Rehmung v. US, 8 Cl Ct 793, 33 CCF P 74028 (1985).

These cases approved screening that precluded the disqualified lawyer from deriving any remuneration from the funds obtained by the firm in the course of representation in the matter, excluded the disqualified lawyer from any form of participation in the action, instructed all other lawyers in the firm not to discuss the matter in the disqualified lawyer's presence or to allow the disqualified lawyer to view any documents or other material related to the litigation, and precluded the other lawyers from receiving any information from the disqualified lawyer. In some of these cases, the firm went an extra step, holding training seminars for lawyers in the firm to apprise them of the disqualification situation and familiarize them with the relevant ethical constraints and need for strict adherence to procedures designed to guarantee confidentiality.

Given the omnipresent possibility that the former firm will file a motion to disqualify the acquiring firm, and the concomitant need to persuasively demonstrate to a judicial arbiter that a truly impenetrable Chinese wall has been erected, a particularly noteworthy example of a litigation-proof strategy displays itself in American Sigma Inc v. QED Environmental Systems, USPQ (BNA) (No. 88-1, Comm'r Pat, July 31, 1989). There the acquiring firm had a standing Conflicts Committee, which conducted an ongoing review of its connection with matters to which members, in any former employments, may have had any professional contact. When it prepared to add a new member, it identified files to which a Chinese wall was needed in a written communication addressed to all firm members, including nonlawyer confidential employees, and circulated the resulting memorandum, requiring each lawyer and confidential employee to sign or initial it prior to the date on which the new associate joined the firm.

Note that this attention to detail, such as the inclusion of confidential nonlawyer employees, i.e., employees with access to files or other material protected by lawyer-client privilege, is required by MRPC 5.3, which provides:

    "With respect to a nonlawyer employed by, retained by, or associated with a lawyer:

      "(a)a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;

      "(b)a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and

      "(c)a lawyer shall be responsible for conduct of such a person that would be a violation of the rules of professional conduct if engaged in by a lawyer if:

        "(1)the lawyer orders or, with knowledge of the relevant facts and the specific conduct, ratifies the conduct involved; or

        "(2)the lawyer is a partner in the law firm in which the person is employed or has direct supervisory authority over the person and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action."

See also, American Sigma Inc v. QED Environmental Systems Inc, USPQ (BNA) (No. 88-1, Comm'r Pat, July 31, 1989); Sunkist Growers Inc v. Benjamin H Ansehl Co, 221 USPQ (BNA) 1077 (Comm'r Pat, 1984).

All that has been said about Chinese walls thus applies with nearly equal force to both nonlawyer employees of the acquiring law firm, and nonlawyer associates who contemporaneously accompany or subsequently join the transferring lawyer. The same would hold true if a nonlawyer employee transfers from one law firm to another alone, or as part of a group of nonlawyers; appropriate Chinese walls must be erected. Kapco Mfg Co Inc v. C&O Enterprises Inc, 637 F Supp 1231 (ND Ill 1985); Williams v. Trans World Airlines Inc, 588 F Supp 1037 (WD Mo 1984); Glover Bottled Gas Corp v. Circle M Beverage Barn Inc, 514 NYS 2d 440 (1987); ABA Op 88-1526 (1988).

Even so, some courts resisted this movement, and adhered to a strict, firm-wide disqualification philosophy. Cheng v. GAF Corp, 631 F2d 1052 (CA 2 1980), vacated on other gds, 450 US 903, 67 L Ed 2d 327, 101 S Ct 1338, on remand 566 F Supp 350, rev'd on other gds, 713 F2d 886 (CA 2 1984); Re Asbestos Cases, 514 F Supp 914 (DC ED Va 1981). Other courts recognized the theoretical facility of screening procedures, but ordered disqualification when such procedures were not in place at the outset of the employment transfer. LaSalle National Bank v. County of Lake, 703 F2d 252 (CA 7 1983); Illinois v. Borg Inc, 553 F Supp 178 (DC ND Ill 1982); Hallmark Cards Inc v. Hallmark Dodge Inc, 616 F Supp 516 (DC WD Mo 1985); Easy Painter Corp v. Padco Inc, 746 F2d 1459 (CA FC 1984). Cf, Geisler v. Wyeth Laboratories, 716 F Supp 520, (1989) [existence of Chinese wall at outset of transfer key factor in upholding validity of the arrangement].

The Michigan Supreme Court appears to have embraced the more modern view with its adoption of MRPC 1.10(b) and 1.11, but the Rules must be understood in their historical context. It is noteworthy that the court specifically addressed the separate concepts of screening and fee apportionment, in recognition of the developed case law, and added a requirement, MRPC 1.10(b)(2), and 1.11(a)(2) that prompt written notice be given to the appropriate tribunal, to enable the tribunal to ascertain compliance with the provisions of the rule.

This latter requirement provides the answer to one subsidiary question posed by the lawyer, who proposes notifying affected tribunals only in those circumstances where an affected litigant raises a question regarding potential conflict of interest. To the contrary, the notice must, in accordance with the clear requirements of MRPC 1.10(b)(2) and 1.11(a)(2), be provided to all affected tribunals immediately upon the lawyer's association with the plaintiff firm, irrespective of whether any litigant has interposed an objection.

Additionally, by virtue of MRPC 3.5(b), copies of such notices must be provided to all parties in affected litigation; otherwise, the notice would constitute forbidden ex parte communication with a tribunal concerning a pending matter. Dissemination of notice is appropriate, because the rule is designed to protect the interests of the lawyer's and defense firm's clients, present and former, as well as to insure institutional integrity. This also enables affected courts to effectuate their summary jurisdiction over lawyer conduct impacting on actions or proceedings pending in those courts. MCR 8.122.

Pertinent also to the analysis of the questions posed is the fact that the lawyer is a principal in the firm, not a junior associate. Generally, the appearance of one lawyer in a firm in litigation constitutes the appearance of all lawyers. MCR 2.117(B)(3)(b). But a principal in a firm is presumed to have supervisory authority over other lawyers in the firm, and, presuming that lawyers conform their conduct to the requirements of the Rules of Professional Conduct, such principals must be presumed to have sufficient involvement in cases being handled by their firms that they can properly exercise their supervisory responsibilities. See MRPC 5.1(c)(2); Taxpayers Ass'n Inc v. Haber, 634 F2d 182 (CA 5 1981); Crawford W Long Memorial Hosp v. Yerby, 373 SE2d 749 (Ga 1988). If the lawyer has physically accessed a file, the lawyer must be charged with knowledge of its contents. United States v. Agurs, 429 US 97, 49 L Ed 2d 342, 96 S Ct 2392 (1976).

A mere associate lawyer who disclaimed access to confidential information protected by MRPC 1.6 or 1.9(b) might well be absolved of the need to erect a Chinese wall about himself or herself when transferring to another firm, with respect to clients of the former firm as to whom he or she had no personal responsibility or involvement. But the lawyer, as a principal in the defense firm, has at a minimum the burden of persuasion that, as to any client of the defense firm with an active file at the time of the lawyer's departure, or as to whom the defense firm may, in the course of past litigation, have acquired confidential information which could be used to the detriment of the client in future litigation, that the lawyer did not, in fact, acquire such client confidences.

With respect to hospital clients, who by the lawyer's own statement look to him as the partner in charge, and who was thus in a principal supervisory capacity over all such litigation, the presumption would seem to be well nigh irrebuttable. The lawyer, for example, may have acquired unique insights into means of acquiring otherwise privileged information, such as Peer Review Committee data, see MCL 333.21515, which would greatly facilitate the task of the plaintiff firm in prosecuting medical malpractice claims against the lawyer's former hospital clients.

By contrast, a government lawyer moving to the private sector is affected by the less restrictive requirement that the lawyer has "personally and substantially participated in a matter" for screening to be necessary. MRPC 1.11(a). Indeed, some authorities hold that Chinese walls are inherently ineffective when the person to be screened is a firm partner, reasoning that a law firm cannot function "if a partner may be excluded from participating in the business of the firm." Plus Products v. Con-Stan Industries Inc, 221 USPQ (BNA) 1071, 1075 (Comm'r Pat, 1984).

Only strict geographical separation would suffice to alter this disqualifying equation. NFC Inc v. General Nutrition Inc, 562 F Supp 332 (Mass 1983). Given the lack of absolute prohibition against the transfer of law firm principals in MRPC 1.10, so long as the acquiring firm establishes or maintains a management system which excludes the affected lawyer from all management responsibility over compromised matters -- as by excluding the disqualified lawyer from meetings which affect such matters -- then an otherwise proper Chinese wall should still achieve sanction and avoid disqualification. See Sunkist Growers Inc v. Benjamin H Ansehl Co, 221 USPQ (BNA) 1077 (Comm'r Pat, 1984). Absolute firm disqualification may thus potentially be avoided, at least where only one partner is involved, depending on the size of the acquiring firm and the number of principals in it. The Chinese Wall Defense to Law Firm Disqualification, 128 U Penn L Rev 677, at n 158 (1980).

This provides an answer to the lawyer's subsidiary inquiry as to the length of time any screening procedures must remain in place; there can be no firm and fast rule, and each case must turn on its own facts. At least in the medical malpractice context, where the lawyer's former clients are hospitals, the screening procedures may have to remain in place indefinitely, until the passage of time obviates any possibility that the lawyer could use the confidences of former clients in aid of their adversaries, namely, in aid of clients of the plaintiff firm. New associates of the plaintiff firm must be made aware of the Chinese wall, and of their ethical obligation in that respect, as soon as they join the firm. Note, however, that in general, if new representation, even though involving litigation against a former client, does not implicate client confidences or secrets, then conflict of interest considerations would not ordinarily preclude the law firm from undertaking such new representation. Feaheny v. Caldwell, 175 Mich App 291, 308-309 (1989), citing MCPR DR 5-105 and MRPC 1.7, 1.9, 1.10, 1.12, 1.13, and 2.2.

On the other hand, with respect to product liability insurer clients, any confidences the lawyer acquired would more likely be case-specific, and there would be no carryover as to future cases. But a particular insured party might have imparted secrets to the defense firm, and presumptively to the lawyer, which could be turned against it, requiring that the lawyer and the plaintiff firm remain alert to possible disqualification situations, and invoke their screening procedures immediately whenever such situations arise.

In other respects, the proposed screening procedures, and segregation of earned fees, by which the plaintiff firm proposes to erect a Chinese wall between itself and the lawyer, as described, with modifications in terms of physical file separation and security and dissemination of information regarding the Chinese wall among existing and subsequently associated plaintiff firm members, must comport with the requirements set forth in the developed case law which is engrafted into the screening and fee apportionment requirements of MCR 1.10 (b)(1).

With the screening procedures in place, the lawyer, if associated with the plaintiff firm, should consider the lawyer disqualified from all pending cases in which the defense firm represents a client and in which secrets acquired in the course of that form of representation might be used against the client, and from future cases involving clients as to whom the lawyer had personal or supervisory involvement.

Where the lawyer is thus disqualified, the lawyer may nonetheless avoid the disqualification, and undertake representation in situations otherwise barred, when the disqualification relates to possible use of confidences or secrets of former clients, provided that those former clients consent, after full disclosure, to the representation. MRPC 1.6(c)(1). In this respect, information the lawyer acquired in the course of assigning matters to junior lawyers in the defense firm might not be either confidences or secrets as defined by MRPC 1.6(a). For example, where the only information acquired by the lawyer was a copy of a filed complaint forwarded to the defense firm by the client, since a filed complaint is, by its nature, both a public and a published document, there would thus be nothing confidential or secret. Insufficient information has been provided as to whether the lawyer might, in a particular situation, have first discussed such matters with the client, and thus engendered confidentiality if not secrecy, before fulfilling the lawyer's assignment function as a principal in the defense firm.

Based on the foregoing analysis, we conclude that the screening and fee segregation procedures envisaged by the plaintiff firm satisfy the requirements of MRPC 1.10(b)(1), that prompt sua sponte disclosure to affected tribunals is required by MRPC 1.10(b)(2), and that the Chinese wall thus erected must remain in place for as long as necessary to assure that the lawyer does not use the confidences and secrets of former clients, or of past, present, or future (e.g., repeat) clients of the defense firm, against them in violation of MRPC 1.6 or 1.9(b). In evaluating the lawyer's ethical obligations vis-a-vis such future adversaries, the lawyer must be cognizant of a special status as a former principal in the defense firm, by virtue of MRPC 5.1(c)(2).

 
     

 

follow us
Follow Us on Facebook Follow Us on LinkedIn Follow Us on Twitter Follow the SBM Blog

 

©Copyright 2014

website links
Contact Us
Site Map
Website Privacy Statement PDF
Staff Links

SBM on the Mapcontact information
State Bar of Michigan
306 Townsend St
Lansing, MI 48933-2012
Phone: (517) 346-6300
Toll Free: (800) 968-1442
Fax: (517) 482-6248