checklist to screen imputed conflicts

Imputed conflicts

Typically, imputed conflicts occur because you are in partnership or association with one or more other lawyers who have a direct conflict. The principle behind imputed conflicts is the imputation of information concerning a client or matter among all lawyers and staff in a firm. The merger of law firms or the lateral hiring of new partners and lawyers often create imputed conflicts which then need to be addressed. In certain circumstances, imputation of a conflict can also pertain to lawyers in work-sharing or space-sharing arrangements.

Screens/walls

In response to the court's imputation of conflicts, lawyers, particularly those in large firms, try to use physical procedural barriers called "screens" or "walls" to prevent one or more lawyers or staff from being exposed to information relating to a matter currently or formerly handled by other lawyers/staff.

Attempts to screen disqualified lawyers sometimes work to prevent the firm's disqualification. Imputation creates a rebuttable presumption of shared knowledge among lawyers and, accordingly, our courts tend to carefully scrutinize how the firm has implemented a particular screen when the issue is before them.

is the screen/wall effective?

Key factors in assessing whether the screen will be effective are:
  The size of the firm: The larger the firm, the less likelihood of contact by screened lawyers with non-screened lawyers.
  The physical layout of the office and proximity of lawyers and staff working on the matter to the screened lawyers.
  The file storage system, including the location of files relative to the location of screened lawyers, the ability to access files by screened lawyers, and various security measures in place to prohibit access.
  Timeliness of implementation of screen to ensure confidentiality of information.

Before attempting to use a screen to avoid disqualification, a review of and compliance with the guidelines developed by the Canadian Bar Association in its Task Force Report ­ Conflict of Interest Disqualification: Martin v. Gray and Screening Methods is recommended. They have been reproduced here with the permission of the Canadian Bar Association.

CBA Guidelines

  1. The screened lawyer should have no involvement in the current representation.


  1. a) The screened lawyer should not discuss the current matter or any information relating to the representation of the former client (the two may be identical) with anyone else in the new firm.

    b) No member of the new firm should discuss the current matter or the prior representation with the screened lawyer.


  1. The current client matter should be discussed only within the limited group who are working on the matter.


  1. a) The files of the current client, including computer files, should be physically segregated from the regular filing system, specifically identified, and accessible only to those lawyers and support personnel in the firm who are working on the matter (or require access for other specifically identified and approved reasons).

    b) No member of the firm should show the disqualified lawyer any documents relating to the case.


  1. The measures taken by the firm to screen the lawyer should be stated in a written policy explained to all lawyers and support personnel within the firm, supported by an admonition that violation of the policy will result in sanctions, up to and including dismissal.


  1. Affidavits should be provided by the appropriate firm members, setting out that they have adhered to and will continue to adhere to all elements of the screen.


  1. a) Former client should be informed that the screened lawyer is now with the firm representing the current client.

    b) The former client must be advised of the measures adopted by the firm to assure there will be no misuse of the confidential information.


  1. It may prove helpful if the screened lawyer does not participate in the fees generated by the current client matter.


  1. The lawyer's office should be located away from the offices of those working on the matter.


  1. The screened lawyer should use associates and support personnel different from those working on the current client matter.


  1. Every effort should be made to obtain the former client's consent to the new firm's representation. If that consent is given, it must be on the basis of a fully informed appreciation of the situation and only after receiving independent legal advice.
 

Last update: Oct. 7, 2002