By David Sorensen
While many are aware of the concept of screening, especially in light of recent action by many states and the ABA in this regard, fewer are aware how actually to use screening effectively. Correct use can not only obviate potential disqualifications, but also bar complaints, fee disgorgements, and legal malpractice claims.
Over the next few months I will post from time to time on this topic from a law firm practice management perspective and in relation to important rules and decisions on the issue. Today focuses on California (with lessons for all of course).
Before 2010 it was not clear when, if ever, a conflicted lawyer could be screened in California for purposes of avoiding disqualification. In the last few months California lawyers received the first substantive discussion on the issue of screening by a California federal court since Kirk v. First American Title Ins. Co., 183 Cal. App. 4th 776 (2010) (which found a screen appropriately used by class action defendant firm although one the firm lawyer had, prior to joining the firm, received confidential information from plaintiffs' class counsel).
After Kirk, California declined to adopt a screening rule in a proposed version of Model Rule 1.10, choosing instead to let screening issues be resolved through case law.
In Openwave Systems, Inc. v. Myriad France S.A.S., Slip Copy, 2011 WL 1225978 (N.D. Cal. 2011) U.S. District Court for the Northern District of California applied Kirk and denied a motion to disqualify because, inter alia, the conflicted lawyer had been effectively screened.
The case is notable 1) because federal courts are not technically bound to apply state law on the issue of disqualification, and 2) unlike Kirk, the situation involved a more standard former-client conflict that arose from a lawyer switching firms.
More on this case, and this topic, to follow.
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