CHANGING FIRMS

[Home] [Table of Contents]

Lawyers

        Scenario: Lawyer changes law firms while those firms have a matter pending between them. While at the old firm, Lawyer may or may not have had some contact with that matter. Lawyer’s presence at the new firm may disqualify the entire new firm in that matter. Usually, the consent of the client of the old firm will avoid that result. What if the client will not consent? Will a "Chinese Wall" or screen at the new firm avoid disqualification absent consent? What if the person changing firms is a non-lawyer, such as a paralegal or secretary? Those are the issues addressed on a state-by-state basis below.

        Several general comments are in order. In most states we say that, as to lawyers, the screen, without consent, will "probably not" work. That is because those states adopted Model Rule 1.9(b). That rule does not approve of a screen if the moving lawyer has information that is "material to the matter." In those several states with such a rule where a court has addressed the issue, the court has almost always ruled that the rule means what it says. That rule does not require a screen if the information is not "material."

        Enter Restatement § 124. It does not allow a screen where the information is significant, but does not, like Model Rule 1.9(b), stop there. If the lawyer has information that is not "significant," the Restatement requires a screen.  Note, the Model Rule does not require a screen if the moving lawyer's knowledge is not "material to the matter." (We are not aware of anything in the literature that makes a distinction between "significant" and "material.")  Several states have started down the Restatement path. As you will see below, Minnesota has adopted a rule similar to the Restatement's. The New York Court of Appeals has adopted a similar rule in a decision.

        In doing research for this section, we had the good fortune to come across Ohio's New Ethical Screening Procedure, by Burkhart R. Lindahl, 31 U. Toledo L. Rev. 145 (Fall 1999).  The article was precipitated by the Kala decision of the Ohio Supreme Court (see Ohio below).  Nevertheless, it is one of the clearest and most comprehensive discussions of screening in the United States that the we have encountered in the years we have considered this subject.

        Other Articles.  Comment, The Use of Screens to Cure Imputed Conflicts of Interest: Why the American Bar Association’s Failure to Allow Screening Undermines the Integrity of the Legal Profession, 35 U. Balt. L. Rev. 367 (2006); Paul R. Tremblay, Migrating Lawyers and the Ethics of Conflict Checking, 19 Geo. J. Legal Ethics 489 (2006) ; John T. Hungerford, Working with what We've got: Toward a Modern Approach to Ethical Screens, 18 Geo. J. Legal Ethics 823 (2005); Susan P. Shapiro, If it Ain’t Broke . . . An Empirical Perspective on Ethics 2000, Screening, and the Conflict-of-Interest Rules, 2003 U. Ill. L. Rev. 1299 (2003);  Sondra Grifford, Burying the Hatchet: Do Tennessee’s New Screening Rules Leave the Clinard Handle Sticking Out?, 70 Tenn. L. Rev. 201 (2002) ; Luke W. Hunt, Case Note, Legal Ethics - Attorney Conflicts of Interest - the Effect of Screening Procedures and the Appearance of Impropriety Standard on the Vicarious Disqualification of a Law Firm, 70 Tenn. L. Rev. 251 (2002); Burton, Migratory Lawyers and Imputed Conflicts of Interest, 16 Rev. Lit. 665 (1997); Hamilton and Coan, Are We a Profession or Merely a Business?: The Erosion of the Conflicts Rules Through the Increased Use of Ethical Walls, 27 Hofstra L. Rev. 27 (1998); M. Peter Moser, Chinese Walls: A Means of Avoiding Law Firm Disqualification When a Personally Disqualified Lawyer Joins the Firm, 3 Geo. J. Legal Ethics 399 (Winter 1990).

        Treatise.  Hazard & Hodes §§ 14.8-14.11; Rotunda & Dzienkowski §§ 1.10-2 to 1.10-4.

        Canada.  In 1994, as a result of the Supreme Court of Canada decision in Martin v. Gray, [1990] 3 S.C.R. 1235 (Can.), the Federation of Law Societies of Canada adopted the Model Rule on Conflicts Arising as a Result of Transfer between Law Firms.   It adopts a balanced screening process.  It, or a version of it, has been adopted by all the Canadian law societies except Quebec.  A recent case in which the court approved a screen and which reviews many Canadian authorities on screens is  Robertson v. Slater Vecchio, 2007 BCSC 987 (CanLII) (S. Ct. of Brit. Col. July 5, 2007),  leave to appeal granted, 2007 BCCA 534 (CanLII) (App. Ct. of B.C. Nov. 2, 2007).


Non-Lawyers

        As shown below, most state courts and ethics committees that have considered this issue as to non-lawyers have given non-lawyers more slack and have approved screening.  So did ABA Informal Op. 1526 (1988).  Restatement § 123, cmt. f says that non-lawyers are not subject to the imputation rule governing lawyers and recommends screening.  Caution is advised because several recent decisions have not been so liberal.  See, for example, Zimmerman v. Mahaska Bottling Co., 19 P.3d 784 (Kan. 2001) (no screening absent consent).  Also, see First Miami Securities, Inc. v. Sylvia, 780 So. 2d 250 (Fla. App. 2001) and Koulisis v. Rivers, 730 So. 2d 289 (Fla. App. 1999), where Florida appellate courts refused to recognize screening for non-lawyers.  (Florida appellate courts are split on non-lawyers.  To see them all, click here.)  Where we are not aware of an opinion on non-lawyers in a given jurisdiction, we will not state a view as to whether approval of a screen is "probable."

        Treatise.  Rotunda § 11-4.


Summary

        Again, the issue posed below is whether a screen or "Chinese Wall" will prevent a disqualification where the second firm does not have a consent from the client of the first firm.


Alabama

Lawyers - Probably not. Rule1.10(b). See also Roberts v. Hutchins, 572 So. 2d 1231 (Ala. 1990).

Non-Lawyers - Probably not - Ala. Op. RO-02-01 (2002).

Alaska

Lawyers - No.  Rule 1.9(b); Richard B. v. State, 71 P.3d 811 (Alaska 2003).

Arizona

Lawyers - Effective December 1, 2003, new Rule 1.10(d) contains a relatively liberal screening rule, effectively reversing Towne Development of Chandler, Inc. v. Superior Court, 842 P.2d 1377 (Ariz. App. 1992).  In Eberle Design, Inc. v. Reno A & E, 354 F. Supp. 2d 1093  (D. Ariz. 2005), the court ruled that the new rule means what it says.  Lawyer went from Firm A (plaintiffs’ firm) to Firm B (defendant’s firm).  During a telephone conference with the judge Firm B asked for the court’s “guidance” as to whether Lawyer will cause Firm B to be disqualified.  The court said that Firm B would not be disqualified as long as Firm B screens Lawyer from this case.  Arizona’s version of Model Rule 1.10 says a screen will work if the moving lawyer did not have a “substantial role” in the case while at his old firm.  The court here said that billing nine hours on the case preparing voir dire questions was not a substantial role.

Ariz. Op. No. 04-04 (June 2004) holds that a public defender office cannot create a separate unit to avoid conflicts.  Screening will not work in that context.

Non-Lawyers - Probably.  Smart Industries Corp. v. Superior Court, 876 P.2d 1176 (Ariz. App. 1994).

Arkansas

Lawyers - Probably not. Rules 1.9(b) and 1.10(a).  See also Burnette v. Morgan, 794 S.W.2d 145 (Ark. 1990).

Lineberry v. Riley Farm Property Owners Assoc., 2005 Ark. App. LEXIS 804 (Ark. App. Nov. 9, 2005).  The majority opinion was ordered not published, and it is not available online.  From the dissent we gather that a lawyer who had represented Lineberry early in this litigation joined Riley’s law firm.  Riley moved the appellate court to declare that its firm did not have a conflict, or in the alternative, to grant Riley’s firm leave to withdraw.  Evidently, the majority ruled that it had no jurisdiction to declare whether there was a conflict, but it did grant leave for Riley’s firm to withdraw.  Unfortunately, without the majority opinion, one cannot make much sense of any of this.

Non-Lawyers - Probably.  Herron v. Jones, 637 S.W.2d 569 (Ark. 1982).

California

Lawyers - State Courts - Relying on screen may be dangerous.  In Panther v. Park, 123 Cal. Rptr. 2d 599 (Cal. App. 2002), the court approved screening in the case of a moving lawyer, relying heavily on the Ninth Circuit's decision in In re County of Los Angeles, 223 F.3d 990 (9th Cir. 2000) (discussed below).  However, after the California Supreme Court granted review, the prevailing party below asked the Supreme Court to remand the case to the appellate court instructing the appellate court to withdraw its opinion and dismiss the appeal.  The Supreme Court did so at  63 P.3d 215 (Cal. 2003).

Other authority.  Klein v. Superior Court, 244 Cal. Rptr. 226 (1988), and Henriksen v. Great American Savings & Loan, 14 Cal. Rptr. 2d 184 (Cal. App. 1992), have been cited as discouraging screening as a way to avoid disqualification.  In Applied Concepts, Inc. v. Superior Court, 2002 Cal. App. Unpub. LEXIS 603 (Cal. App. April 30, 2002), a screen was erected, but the court ignored it and disqualified the moving lawyer's new law firm.  L.A. County Op. 501 (1999) contains a lengthy discussion of imputation in California, but it does not discuss screening.  See Gibbon-White, Migratory Lawyers in Private Practice: Should California Approve the Use of Ethical Walls?, Loy. L.A. L. Rev. 161 (1999).

 Another case involving a firm too small to support a screen is Thomas v. Howard, 2006 Cal. App. Unpub. (Cal. App. Nov. 7, 2006).

City and County of San Francisco v. Cobra Solutions, Inc., 43 Cal. Rptr. 3d 771 (Cal. 2006).  The court held that when a private lawyer for the other side becomes head of a city’s law department, a screen will not prevent the whole department from being disqualified.  

Not a screening case, but important nonetheless.  Adams v. Aerojet-General Corp., 104 Cal. Rptr. 2d 116 (Cal. App. 2001).  Firm A represented Corporation in environmental matters.  Lawyer X was a partner in Firm A but did no work on Corporation's matters.  Lawyer X moved to Firm B and attempted to sue Corporation on environmental matters.  Corporation moved to disqualify Lawyer X, and the trial court granted the motion.  The appellate court reversed and remanded.  The appellate court purported to answer this issue for the first time:  Were Corporation's confidences in Firm A automatically imputed to Lawyer X, so that Lawyer X cannot sue Corporation on environmental matters?  The appellate court said no, citing ABA Model Rule 1.9 and Restatement § 124.  In remanding the case, the appellate court said:

On remand, the court should focus not only on the relationship between [Lawyer X] and [Firm A's] representation of [Corporation], but whether [Lawyer X's] responsibilities as partner and principal, as well as his relationship with other members of [Firm A], placed him in a position where he was reasonably likely to have obtained confidential information relating to the current case.

To the same effect, see Goldberg v. Warner/Chappell Music, Inc., 23 Cal. Rptr. 3d 116 (Cal. App. 2005), and Umbrasas v. Amgen, Inc., 2007 Cal. App. Unpub. LEXIS 6858 (Cal. App. Aug. 23, 2007) (relying on Aerojet).  

Ochoa v. Fordel, Inc., 53 Cal. Rptr. 3d 277 (Cal. App. 2007), involved a lawyer who changed firms.  Screening was not an issue.  What the lawyer knew about a case pending between his old firm and his new firm was an issue.  The court held that only his "actual knowledge" was the issue.  The fact that the lawyer had "access" to the information at the old firm was not enough to disqualify the new firm.

In re Zamer, 62 Cal. Rptr. 3d 704 (Cal. App. 2007).  The Children’s Law Center is a not-for-profit organization that represents certain children in juvenile court proceedings.  The Center was organized into separate screened units to represent siblings who might have conflicts of interest.  In this opinion the appellate court held that the screens would prevent disqualification.  

Lawyers - Federal Courts - Screening Approved Flat-Out by Ninth Circuit,  In re County of Los Angeles, 223 F.3d 990 (9th Cir. 2000).  ViChip Corp. v. Tsu-Chang Lee, 2004 U.S. Dist. 24968 (N.D. Cal. Dec. 3, 2004), and Visa U.S.A., Inc. v. First Data Corp., 241 F. Supp. 2d 1100 (N.D. Cal. 2003).  Earlier federal court cases more hostile to screening are: Employers Ins. of Wausau v. Albert D. Seeno Constr. Co., 692 F. Supp. 1150 (N.D. Cal. 1988); In re Mortgage v. Realty Trust, 195 Bankr. 740 (C.D. Cal. 1996); Andric v. State of California, 55 F. Supp. 2d 1056 (C.D. Cal. 1999). 

Hitachi, Ltd. v. Tatung Co., 419 F. Supp. 2d 1158 (N.D. Cal. 2006), discusses much of the history of screening in California.  It did not approve a screen because no California state court had yet approved a screen.  It did not mention Panther, supra, presumably because the Panther court had withdrawn its opinion.  Moreover, the court said that it would not have approved a screen, in any event, because the tainted lawyer was working in a small group of lawyers who were working on this case.  Largo Concrete, Inc. v. Liberty Mut. Fire Ins. Co., 2007 U.S. Dist. LEXIS 95690 (N.D. Cal. Jan. 2, 2008), said no to screening, citing Hitachi.

Similar to Adams v. Aerojet General, above, Dieter v. Regents of the Univ. of Cal., 963 F. Supp. 908 (E.D. Cal. 1997).

In Visa U.S.A., Inc. v. First Data Corp., 241 F. Supp. 2d 1100 (N.D. Cal. 2003), citing the appellate decision in Panther, the court approved a screen in a situation not involving a moving lawyer.

In ViChip Corp. v. Tsu-Chang Lee, 2004 U.S. Dist. LEXIS 24968 (N.D. Cal. Dec. 3, 2004), the court disqualified a law firm because it did not screen the new lawyer.  This was not the classic case where the new lawyer was not working on the case; he was the lawyer handling the case.

Lucent Technologies Inc. v. Gateway, Inc., 2007 U.S. Dist. LEXIS 35502 (S.D. Cal. May 15, 2007).  In this patent infringement case Law Firm A represents Plaintiff, and Law Firm B represents Defendant.  Lawyer at Firm A left to join Firm B.  While at Firm A Lawyer worked extensively on this case, about 2300 hours over several years.  Firm B’s D.C.-based lawyers worked on this case.  Lawyer joined Firm B’s New York City office.  Firm B did not set up a screen until some time after Lawyer arrived.  At a time when there was no screen in place, several lawyers at Firm B mentioned this case to Lawyer, but Lawyer claimed he told them nothing.  Defendant moved to disqualify Firm B, and in this opinion the court granted the motion.  The court discussed the California cases and Ninth Circuit cases and concluded that under these circumstances California courts would not approve the screen in this case.

Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., 2007 U.S. Dist. LEXIS 83150 (N.D. Cal. Oct. 29, 2007).  Lawyer worked in-house at Plaintiff for several years on Plaintiff’s trademark matters.  In 2000 Lawyer went to work in Law Firm’s Menlo Park office.  Law Firm is representing Defendant in this trademark infringement action.  The mark in question is similar to the marks upon which Lawyer worked while at Plaintiff.  In this opinion the court sustained Plaintiff’s motion to disqualify Law Firm.  The court held that this case was substantially related to what Lawyer had done at Plaintiff.  The court also held that the entire Law Firm should be disqualified.  There had been several half-hearted attempts by Law Firm to set up a screen, but the court seemed to be saying that a screen would not have made any difference because this conflict involved Lawyer’s actual representation of Plaintiff, not just Lawyer’s knowledge of information about the matters in this case.  The court also held that waiting approximately two months from the date the complaint was filed until moving to disqualify did not waive the conflict.  Another untidy aspect to this matter was that Lawyer was listed as one of the lawyers at Law Firm on the application papers for the trademark in question.  Defendant learned of this in early 2006 and raised concerns about it with Lawyer at that time.  Law Firm claimed, however, that its trademark team for this case was based in D.C. and that Lawyer did not, in fact, work on the matter. 

Non-Lawyers - Probably.  Atmel Corp. v. Information Storage Devices, Inc., 1998 U.S. Dist. LEXIS 4241 (N.D. Cal. 1998); Wallis v. PHL Associates, Inc., 2006 Cal. App. Unpub. LEXIS 1739 (Cal. App. Feb. 28, 2006); In Re Complex Asbestos Litigation, 283 Cal. Rptr. 732 (Cal. App.1991); Gregori v. Bank of America, 254 Cal. Rptr. 853 (Cal. App. 1989).  Cal. Op. 1992-126 (1992) seems to suggest that screening will work for temporary lawyers who move from firm-to-firm.  Thomas v. Howard, 2006 Cal. App. Unpub. LEXIS 11287 (Cal. App. Dec. 15, 2006), did not follow In Re Complex Asbestos Litigation, because paralegal had passed the bar exam (but, not yet admitted).

Not joining firm, but hiring it.  Neal v. Health Net, Inc., 123 Cal. Rptr. 2d 202 (Cal. App. 2002).  Michael Traylor represents the plaintiff in an action against the defendant, Health Net, Inc.  Health Net fired one of its legal secretaries, Cynthia Brockett, while this suit was pending.  She hired Traylor to represent her.  Accordingly, Health Net moved to disqualify Traylor in this case.  Brockett admitted that while at Health Net she looked briefly at a file related to this case.  Both she and Traylor denied that she gave any of this information to Traylor.  The trial court granted the motion to disqualify Traylor.  The Appellate Court reversed, noting that this case did not involve a lawyer or non-lawyer changing firms but rather a non-lawyer leaving one firm and hiring the other as her lawyer.  The court also noted that there was no showing that Brockett gave Traylor any confidential information from the file she looked at.  This case is not unlike a series of Northern District of Illinois cases cited below under "Illinois."  They involved a lawyer who left a law department and hired (not joined) a law firm that was suing her former employer in three separate cases.  She had had supervisory responsibility for those cases, but the courts held that the defendants had failed to show that she gave her lawyer any information about the cases.  To see a discussion of those cases, click here.

Colorado

Lawyers - Until January 1, 2008, probably not.  Rules 1.9(b) and 1.10(a). See Colorado Formal Op. 88 (1991).  However, one federal judge in Colorado spoke favorably of screens, Hunter Douglas, Inc. v. Home Fashions, Inc., 811 F. Supp. 566 (D. Col. 1992).  People v. Manzanares, 139 P.3d 655 (Col. 2006), looks favorably upon screens for former defense lawyers who move to prosecutors’ offices.

As of January 1, 2008 - Probably.  According to the June 27, 2007, online edition of the Current Reports of the ABA/BNA Lawyers’ Manual on Professional Conduct, Colorado has amended its rules to conform to most of the ABA changes in 2002-2003.  One exception is that Colorado will add a fairly lawyer-friendly screening provision to Rule 1.10.  For a screen to work, the moving lawyer should not have “substantially participated” in the subject matter at his or her former firm.  The Colorado changes will take effect January 1, 2008.

Non-Lawyers - Hard to say.  Col. Op. 105 (1999) looks favorably on screening in the context of temporary lawyers.

Connecticut

Lawyers - Probably not. Rule 1.10(b).  Ct. Op. 01-16 (2001) holds that Rule 1.10(b) means what it says and that screening without consent will not work.  We are not aware of a Connecticut Supreme or Appellate Court opinion holding that the rule does not mean what it says. But, see Horch v. United of Omaha Life Ins. Co., 1999 Conn. Super. LEXIS 1792 (Conn. Super. 1999), which approved a screen, but citing no Connecticut authority for doing so.  Also see State of Connecticut v. White, 2000 Conn. Super. LEXIS 85 (Conn. Super. 2000), and State of Connecticut v. Marion, 2000 Conn. Super. LEXIS 77 (Conn. Super. 2000). Neither was about lawyers changing firms; they were both criminal prosecutions. Neither discussed Rule 1.10(b). In each case, the court implied that if an effective "Chinese Wall" had been erected, there might not have been a disqualification. Also, see Wellner v. Carroll, 1995 Conn. Super. LEXIS 359 (Conn. Super. 1995), not involving a lawyer changing firms. It does imply that a "Chinese Wall" in that case might have prevented disqualification. It does not discuss Rule 1.10(b).

Non-Lawyers - Maybe.  Rivera v. Chicago Pneumatic Tool Co., 1991 Conn. Super. LEXIS 1832 (Conn. Super. 1991).

Delaware

Lawyers - Probably. Rule 1.10(c). See Delaware Op. 1986-1; Nemours Foundation v. Gilbane, Aetna, Federal Ins. Co., 632 F. Supp. 418 (D. Del. 1986).  

Non-Lawyers - Probably.  Del. Op. 1986-1 (undated).

District of Columbia

Lawyers - Probably not. Rule 1.10(b). See D.C. Bar Ops. 273 (1997) and 227 (1992).

Doing the Conflicts Analysis without Violating Confidentiality Rules.  D.C. Op. 312 (2002).  This opinion deals with the delicate topic of what a potential hire and her new law firm can tell each other when sorting through the potential conflicts.  Increasingly, authorities are taking the position that the mere identity of a client may be subject to the confidentiality provisions of Model Rule 1.6 and similar rules.  This opinion sifts through the various permutations of how the firm and the candidate can do the conflicts check without violating such rules.  What makes the opinion slightly “one-off” is the fact that D.C.’s version of Rule 1.6 retains the “confidence or secret” rubric, and the opinion confines its analysis to the D.C. version.

Non-Lawyers - Probably.  D.C. Op. 227 (1992) & 279 (1998).

Florida

Lawyers - Probably not. Rule 4-1.10(b). See Gaton v. Health Coalition, Inc., 745 So. 2d 510 (Fla. App. 1999); Birdsall v. Crowngap, Ltd., 575 So. 2d 231 (Fla. App. 1991); Edward J. DeBartolo Corp. v. Petrin, 516 So. 2d 6 (Fla. App. 1987); Nissan Motor Corp. v. Orozco, 595 So. 2d 240 (Fla. App. 1992).

Solomon v. Dickison, 916 So. 2d 943 (Fla. App. 2005).  Lawyer moved from Firm A to Firm B.  Lawyer and Firm B are representing the plaintiffs in this medical malpractice case.  Firm A represents the defendants, including a hospital.  While Lawyer was with Firm A, he represented the hospital in a number of cases.  One day, while still at Firm A, he had a conversation with the hospital’s claims adjuster about this matter.  Based upon that conversation, the hospital moved to disqualify Lawyer and Firm B.  In his affidavit Lawyer claimed that all the adjuster said was that the hospital was going to send a case to Firm A that involved a patient who had a problem when admitted and had a worse problem after treatment.  The adjuster submitted an affidavit saying that she told Lawyer all about the case.  The trial court, relying on Florida’s version of MR 1.9, granted the motion, holding that the presumption that Lawyer had the hospital’s information from the earlier representations was “irrefutable.”  The appellate court in this opinion ordered the disqualification vacated and remanded for an evidentiary hearing.  It ruled that the motion should have been governed by Florida’s version of MR 1.10(b), that the foregoing presumption was not irrefutable, and that the trial court should hold an evidentiary hearing to resolve the conflict raised by the two affidavits.

 Scott v. Higginbotham, 834 So. 2d 221 (Fla. App. 2002). Andrew Klymenko changed firms while a matter was pending between the two firms.  The client of the old firm moved to disqualify the new firm.  A partner in the old firm submitted an affidavit stating that Klymenko had confidences about the matter.  But, in a hearing the partner could not recall what the confidences were.  Klymenko testified that he received no such information.  The trial court denied the motion to disqualify.  The appellate court affirmed.

Bon Secours-Maria Manor Nursing Care Center, Inc. v. Seaman, 959 So. 2d 774 (Fla. App. 2007).  Associate at Firm A represented the plaintiff in this case.  While this case was pending, Firm A dissolved, and the first-named partner of Firm A (“Partner”) joined Firm B, the firm that represented the defendant.  Associate continued on behalf of the plaintiff.  The plaintiff moved to disqualify Firm B because of the presence of Partner.  The trial court granted the motion.  In this opinion the appellate court reversed.  The court noted that the only “evidence” that the Partner knew anything about this case was the unsworn statement of Associate.  In contrast the Partner filed an affidavit stating that he knew nothing about the case.

Non-Lawyers – Probably.  In 2006 Florida adopted a new comment to its Rule 4-1.10, which recognizes screening for non-lawyers.  Prior to that change the appellate districts had been split on this issue.  In Lansing v. Lansing, 784 So. 2d 1254 (Fla. App. May 25, 2001) (5th District); Stewart v. Bee-Dee Neon & Signs, Inc., 751 So. 2d 196 (Fla. App. 2000) (1st District), City of Apopka v. All Corners, Inc., 701 So. 2d 641 (Fla. App. 1997) (5th  District), and  Esquire Care, Inc. v Maguire, 532 So. 2d (Fla. App. 1988) (2d District), the courts approved screening of non-lawyers.  Fla. Op. 5 (1986) did likewise.  In First Miami Securities, Inc. v. Sylvia, 780 So. 2d 250 (Fla. App. 2001) (3rd District) and in Koulisis v. Rivers, 730 So. 2d 289 (Fla. App. 1999) (4th District), the courts did not approve screening for non-lawyers.  In  Matluck v. Matluck, 825 So. 2d 1071 (Fla. App. 2002), the court, following Koulisis, disqualified a firm that had associated a lawyer, who had previously acted as a mediator for the parties.  In Eastrich No. 157 Corp. v. Gatto, 868 So. 2d 1266 (Fla. App. 2004), the Fourth District Court of Appeals said Koulisis was still good law, but a secretary who was in the new firm for just part of two days working on nothing having to do with the case would not disqualify the new firm.  One of our Florida observers believes the new comment to Rule 4-1.10 should resolve the split, but caution is advised.

Georgia

Lawyers - Probably not. Rule 1.9(b).  But, see Georgia Baptist Health Care System, Inc. v. Hanafi, 559 S.E.2d 746 (Ga. App. 2002).  The plaintiff, a doctor, sued a hospital in two successive actions relating to the hospital’s refusal to grant practice privileges to the plaintiff.  During the earlier proceeding, the plaintiff changed law firms.  The defense firm then hired from the plaintiff’s earlier firm a young lawyer who had worked on the plaintiff’s case.  The defense firm erected a screen and wrote a letter to the plaintiff’s then current firm saying that the defense firm assumed the plaintiff had no objection to the arrangement.  The opinion does not state that the defense firm received a specific oral approval of the screen.  Seventeen months into the first proceeding the plaintiff moved to disqualify the defense firm.  The trial judge denied the motion, and the plaintiff did not appeal the ruling.  The plaintiff then dismissed the action. 

The plaintiff brought a second action.  The same defense firm appeared.  After eight additional months, the plaintiff moved to disqualify the defense firm.  The trial judge granted the motion.  On appeal the appellate court reversed.  The appellate court said that the seventeen-month and eight-month delays rendered the motion to disqualify untimely.  In addition the court noted there was “evidence” of a waiver and that the screen seemed effective to prevent the plaintiff from being prejudiced.  

11th Cir. Approves screen.   Bayshore Ford Truck Sales, Inc. v. Ford Motor Co., 380 F.3d 1331 (11th Cir. 2004).  Bayshore is one of several dealers suing Ford regarding their franchise agreements.  They filed the suit in 1998.  Sutherland Asbill is Ford's local counsel in the case.  In 1999 Charles Glanz joined Sutherland, bringing one of the plaintiffs and its owner with him.  He did corporate and estate planning for those clients.  Sutherland attempted to get a waiver from those plaintiffs but were unsuccessful.  Sutherland then dropped the dealer and its owner as clients.  Sutherland also erected a screen between Glanz and the lawyers working on this case.  The dealer moved to disqualify Sutherland.  The trial court (N.D. Ga.) denied the motion.  In this opinion the appellate affirmed.

 The court expressed hostility to screening in Amoco Chemicals Corp. v. McArthur, 568 F. Supp. 42 (N.D. Ga. 1983).

Note:  Georgia recently adopted the Model Rule version of Rule 1.9(b), which does not make allowances for screens.  It is not clear whether the appellate court would have allowed the defense firm to stay in the case absent the plaintiff’s long delays in raising the conflict. 

Hawaii

Lawyers - Probably not. Rule1.9(b) and 1.10(a). See Otaka, Inc. v. Klein, 791 P.2d 713 (Hawaii 1990).

Idaho

Lawyers - Probably not. Rule 1.10(b).

Inadvertent breach of screen can be cause of action for damages.  Spur Products Corp. v. Stoel Rives LLP, 122 P.3d 300 (Ida. 2005).  Idaho is not a screening state.  This case involved a screen set up by agreement.  The parties agreed that a screen could be set up for a lawyer changing firms, but later a lawyer in the firm sent information about the screened client to the screened lawyer.  The court held that the breach of the screen constituted a cause of action for damages.

Illinois

Lawyers - Yes. Rules 1.10(b)(2) and 1.10(e). See Cromley v. Lockport Bd. Of Educ., 17 F.3d 1059 (7th Cir. 1994); Amurol Confections Co. v. Morris Nat'l, Inc., 2003 U.S. Dist. LEXIS 9544 (N.D. Ill. June 5, 2003); Miller v. Chicago & N.W. Trans. Co., 938 F. Supp. 503 (N.D. Ill. 1996).  But, see Van Jackson v. Check 'n Go of Illinois, Inc., 114 F. Supp. 2d 731 (N.D. Ill. 2000).  The court disqualified the new firm, primarily because it was too small (four lawyers) to ensure that a screen would work.  Two cases on Illinois' position on screening that predated adoption of screening in the Illinois Rules of Professional Conduct are: SK Handtool Corp. v. Dresser Indust., Inc., 619 N.E.2d 1282, 1290 (Ill. App. 1993); and Marriage of Thornton, 486 N.E.2d 1288, 1294-97 (Ill. App. 1985).

        Not joining firm, but hiring it.  Burrow v. Northeast Illinois Regional Railroad Corp., 2002 U.S. Dist. LEXIS 8100 (N.D. Ill. May 6, 2002).  Burrow is suing the railroad for personal injuries.  His law firm is also representing a former in-house lawyer from the same railroad.  While with the railroad, the in-house lawyer supervised this case.  The railroad has moved to disqualify Burrow’s law firm.  The court denied the motion, principally because it was satisfied that the former in-house lawyer would not reveal confidences about this case to Burrow’s lawyers in this case.  The Northern District of Illinois has its own set of ethics rules, which includes a liberal screening rule for lawyers changing firms – similar to the Illinois rule.  While this case is not strictly about a lawyer changing firms, the court relied, in part, on the court’s screening rule.  Keane v. Northeast Illinois Regional Railroad Corp., 194 F. Supp. 2d 452 (N.D. Ill. 2002), was yet another action brought by the same law firm for another plaintiff.  The former in-house lawyer had worked on that case, as well.  The same motion was made and denied by a different judge.  Here is another one, Williams v. Northeast Illinois Regional Railroad Corp., 2002 U.S. Dist. LEXIS 9743 (N.D. Ill. May 29, 2002).  Different plaintiff; same result.

        Jackson Nat. Ins. Co. v. Duane Morris & Heckscher, Circuit Court of Cook County, Illinois.  (The following summary is taken from an article in the November 11, 2000 online Law.com.  To go to the article, click here.)  Jackson National Insurance Company ("JNIC") had hired Holleb & Coff of Chicago to sue the Philadelphia law firm, Duane Morris & Heckscher.  Duane Morris brought into its Chicago office ten lawyers from Holleb & Coff, at least one of whom had billed time on the JNIC matter.  JNIC sued Duane Morris for an injunction prohibiting their bringing in the Holleb & Coff lawyers.  According to the article, a judge of the Circuit Court of Cook County, Illinois, has denied the injunction because Duane Morris had successfully screened the new lawyers under Illinois' pro-screening rule.  The case is one of the few conflict of interest cases decided not in the context of a motion to disqualify, but rather in a suit for injunction.  For other examples go to "Enjoining Conflicts" by clicking here. 

        Safe-T-Products, Inc. v. Learning Resources, Inc., 2002 U.S. Dist. LEXIS 20540 (N.D. Ill. October 24, 2002).  Lawyer worked on trademark matters at his old firm, including matters for the defendant in this case.  He then moved to his new firm.  After arriving at his new firm he filed this trademark case against the defendant.  Two of defendant’s marks he did work on at his old firm are involved in this case.  Six months after the case was filed, defendant moved to disqualify Lawyer and his new firm.  The court disqualified Lawyer, finding what he had done at his old firm was substantially related to this case.  The court in part relied on the “playbook view” of lawyer’s involvement.  The court said that while working on defendant’s trademark matters at his old firm, Lawyer “likely obtained confidential information about Defendants' business practices that might be relevant to the case at hand.”  The court was also influenced by the fact that Lawyer had actually worked on two marks relevant to this case while at the old firm (although the evidence was that this work was minimal).

  The court refused to disqualify Lawyer’s entire new firm.  The court based that decision on the fact that defendant waited six months before bringing the motion to disqualify.  The court also found that Lawyer had not conveyed any of defendant’s confidences to anyone in the new firm.  (Note: The Northern District of Illinois has its own set of ethics rules; however, it adopted the Illinois Rules approach and provides for screening of lawyers changing firms.  Here, of course, the screen was not set up when the suit was filed.  Without saying it in so many words, the court was giving the new firm a pass on this because of defendant's delay.)

Non-Lawyers - Probably.  Kapco Mfg. Co. v. C&O, Inc., 637 F. Supp. 1231 (N.D. Ill. 1985); Chicago Bar Op. 5 (1994).

Indiana

Lawyers - Perhaps. Indiana has the Model Rule version of Rule 1.10(b).  However, an Indiana appellate court has approved screening, Gerald v. Turnock Plumbing, Heating & Cooling, LLC, 768 N.E.2d 498 (Ind. App. May 20, 2002).  It ruled that the firm should be disqualified, because the screen was not timely.  The court adopted the reasoning of the Seventh Circuit in approving screening.  The following Indiana federal district court cases have also done so: Chapman v. Chrysler Corp. 54 F. Supp. 2d 864 (S.D. Ind. 1999); and Speedy v. Rexnord Corp. 54 F. Supp. 2d 867 (S.D. Ind. 1999).

Iowa

Lawyers - Probably not. DR5-105(E).  In Doe v. Perry Community School District, 650 N.W.2d 594 (Iowa 2002), the court said it approved screening to cure imputed disqualification, but not where the matters in question are "substantially related."  In other words, if a lawyer works on a case and then joins the firm on the other side, a screen will not cure his taint of the entire new firm, an odd conclusion.  Then, you have Sorci v. Iowa District Court for Polk County, 671 N.W.2d 482 (Iowa 2003), a case uniquely relevant to Iowa lawyers.  It involves a lawyer who moved from government to a not-for-profit legal aid entity (move #1) that routinely was adverse to the office from which she left.  The Iowa Supreme court upheld the trial court’s ruling that the not-for-profit be disqualified in many cases.  The court went on to rule that the lawyer’s leaving the not-for-profit (move #2) resulted in saving the not-for-profit from disqualification in certain other cases.  Iowa still has the older Model Code, but is considering a switch to the “Ethics 2000” version of the ABA Model Rules.  Thus, the court was caught in an “in-between” situation, which clouds the significance of its rulings in this case.  It did follow a Restatement section on lawyers who have left employment.  It referred to Doe several times, but not in a way that sheds any real light on things.

Sequel to Sorci.  Iowa Sup. Ct. Att’y. Disciplinary Bd. v. Johnson, 728 N.W.2d 199 (Iowa 2007) .  Lawyer went from being a member of the county prosecutor’s staff to the not-for-profit agency that advised on the appointment of guardians ad litem in juvenile cases.  In this opinion the court reaffirmed that a screen would work for cases in which she had been involved while with the county.  However, because she personally involved herself in two cases upon she had worked while with the county, she should be publicly reprimanded.

Engineered Products Co. v. Donaldson Co., 290 F. Supp. 2d 974 (N.D. Iowa 2003).  In this patent infringement case there was a dispute about whether the plaintiff’s lawyer had a conflict of interest.  Carlson’s problem was that he used to represent Donaldson while at his prior firm, Merchant & Gould (“M&G”) in Minneapolis.  He tried patent cases for Donaldson and got to know Donaldson’s executives.  Carlson claimed he had never heard of this case until after he left M&G and EPI came to him and asked him to replace EPI’s other counsel.  The extent of Carlson’s knowledge about Donaldson was hotly disputed.  The magistrate judge accepted Carlson’s statement that he knew nothing about this case while at M&G but disqualified him anyway.  The magistrate did not make a “playbook” analysis, but rather applied a presumption that Carlson had Donaldson’s secrets while at M&G.  The court further held that the presumption was not rebuttable.  The magistrate, basing his decision on the appearance-of-impropriety test (this is Iowa, remember), granted the motion to strike Carlson’s pro hac vice status.

Kansas

Lawyers - Probably not. Rule 1.10(b). See Lansing-Delaware Water Dist. v. Oak Lane Park, Inc., 808 P.2d 1369 (Kan. 1991); Parker v. Volkswagenwerk Aktiengesellschaft, 781 P.2d 1099 (Kan. 1989); Graham v. Wyeth Laboratories, 906 F.2d 1419 (10th Cir. 1990); Pacific Employers Ins. Co. v. P.B. Hoidale Co., 796 F. Supp. 1428 (D. Kan. 1992); Kan. Op. 90-005 (1991).

Non-Lawyers - No.   Zimmerman v. Mahaska Bottling Co., 19 P.3d 784 (Kan. 2001);  Kansas Op. 90-5 (1991).

Kentucky

Lawyers - Probably. Rules 1.9(b) and 1.10(d).

Sixth Circuit applies ethics rules and disqualifies law firm.  National Union Fire Ins. Co. v. Alticor, Inc., 466 F.3d 456 (6th Cir. 2006), modified, 472 F.3d 436 (6th Cir. 2007) .

Republic Services, Inc. v. Liberty Mut. Ins. Co., 2006 U.S. Dist. LEXIS 77363 (E.D. Ky. Oct. 20, 2006).  In this case the plaintiff has sued several related insurance companies for the way they handled the plaintiff’s workmen’s compensation matters.  Lawyer, one of lawyers appearing in this case for Firm B, was formerly at Firm A (Firm A is not in this case).  While at Firm A Lawyer did work for several of the insurance company defendants in this case.  For this reason the defendants moved to disqualify Lawyer and Firm B in this case.  In this opinion the court granted the motion.  The court first found that, although Lawyer did not work on workmen’s compensation matters at Firm A, he did gain “playbook” (our word – actually, Wolfram’s word) information about the defendants.  Thus, the court held that Lawyer was personally disqualified in this case, pursuant to Kentucky Rule 1.9(a).  The court went on to hold that under Kentucky Rule 1.10(a) Firm B was also disqualified.  Kentucky is a screening state; however, it appears that Lawyer was not only not screened from this case, he was one of the plaintiff’s lawyers in this case.  Another Firm B lawyer, who also formerly handled matters for defendants at Firm A, was screened from this case.  However, because of the ruling disqualifying Lawyer and Firm B, there was no need to consider the efficacy of the screen. 

Non-Lawyers - Probably.  Ky. Op. E-308 (1985).

Louisiana

Lawyers - Probably not. Rule 1.10(b). But, see Petrovich v. Petrovich, 556 So. 2d (La. App.), cert. denied, 559 So. 2d 1377 (1990). The court did not recognize a screen in Green v. Administrators of Tulane Educational Fund, 1998 U.S. Dist. LEXIS 769 (E.D. La. 1998).

In re Lawrence, 884 So. 2d 561 (La. 2004), is a case in which the moving lawyer's new firm tried to avoid a disqualification by showing that the lawyer really knew nothing about the case in question.  While an associate at the Windhorst firm, John Lawrence represented Allison Curtis, a plaintiff in a personal injury case.  The Aubert firm defended the case.  While the case was pending, Lawrence moved to the Aubert firm.  Daryl Higgins, an associate at the Windhorst firm, took over Ms. Curtis’ case.  When Higgins looked at Lawrence’s time records, he noted that Lawrence had recorded 15 hours on all sorts of tasks, including interviewing Ms. Curtis.  Higgins then made a motion to disqualify the Aubert firm.  As part of its response, the Aubert firm produced Lawrence’s affidavit, which stated that Lawrence had really worked only one hour on the case and had learned nothing important from Ms. Curtis.  As to the time discrepancies, Lawrence stated that he had “padded” his time, because that is what he thought his firm wanted him to do.  On the day of the disqualification hearing the Aubert firm withdrew from the case.  The court referred the time discrepancy matter to disciplinary authorities.  Ultimately, in this opinion the court ruled that Lawrence should be suspended for three months because of his admission that he had padded his time sheets, in violation of Louisiana’s version of Model Rule 8.4(a)&(c).

Willis v. TRC Companies, Inc., 2006 U.S. Dist. LEXIS 70776 (W.D. La. Sept. 28, 2006).  While this case was pending, Lawyer A resigned from the firm representing the defendant (“Firm X”) and joined the firm representing the plaintiff (“Firm Y”).  For this reason the defendant moved to disqualify Firm Y.  While A did not work on this case at Firm X, another lawyer at Firm X (“Lawyer B”) filed an affidavit claiming that he, B, had had a wide-ranging conversation about the case with A, while A was at Firm X.  A responded that he could not remember any such conversation.  The court, in this opinion, denied the motion.  The court noted that while Firm X could have produced time sheets verifying that the conversation had occurred, Firm X did not do so.  As to that failure, the court wryly observed: 

The undersigned finds that it is not merely unlikely, but well nigh impossible to believe that any substantive conversation involving information protected by Rule 1.6 would have occurred without at least one and probably both of the attorneys billing the client for their time.

The court also noted that Firm Y had screened A from this case.  The court said that although screening in such cases has not been sanctioned by the Fifth Circuit, the fact that the firm had done it helped its position.  The District Judge concurred at Willis v. TRC Companies, Inc., 2006 U.S. Dist. LEXIS 89094 (W.D. La. Nov. 28, 2006), saying simply that the defendant had simply failed to establish that A learned anything "material" during the aforesaid conversation.

Maine

Lawyers - Probably not. Rule 3.4(k). See Casco Northern Bank v. JBI Ltd., 667 A.2d 856 (Me. 1995).

Non-lawyers - Probably.  Me. Op. 186 (July 22, 2004).

Maryland

Lawyers - Probably. Rule 1.10(b).  The court in Compass Marketing, Inc. v. Schering-Plough Corp., 2006 U.S. Dist. LEXIS 49311 (D. Md. July 6, 2006), applied liberal screening rule according to its terms.

Stratagene v. Invitrogen Corp., 225 F. Supp. 2d 608 (D. Md. 2002).  Vanessa Pierce changed firms.  Her old firm represents a plaintiff in a patent infringement case.  At her new firm Pierce is representing the defendant.  The plaintiff moved to disqualify Pierce and her firm.  While at her old firm, Pierce did work on a patent related to the one at issue in this case.  A partner at her old firm said Pierce had unfettered access to the firm’s files on the patent in this case.  Maryland’s Rule 1.10(b) recognizes screening, but the court noted that not only was Pierce not screened from this case, she was working on it.  The court ordered that Pierce and her firm be disqualified.  

Nes v. Anne Arundel County, 2004 U.S. App. LEXIS 7965 (4th Cir. April 22, 2004).  Plaintiff sued defendant using Firm A.  Defendant has at all times used Firm B.  Plaintiff’s lawyer moved from Firm A to Firm C, and Firm C then became Plaintiff’s law firm.  After that move Firm A merged into Firm B.  Plaintiff then moved to disqualify Firm B.  The trial court, satisfied that Firm B had complied with Maryland Rule 1.10(b), denied the motion.  In this opinion the Fourth Circuit affirmed.  

Massachusetts

Unique rule allowing screening in some cases. Rule 1.10(d) (1) & (2).  The rule seems to allow screening if the moving lawyer has "material" information about the matter from the old firm.  The rule draws the line, however, where the information is "substantial material information" or where the moving lawyer had "substantial involvement" in the matter at the old firm.  A federal district judge, in refusing to approve a screening arrangement, applied the rule according to its terms, United States Filter Corp. v Ionics, Inc., 189 F.R.D. 26 (D. Mass. 1999).  For cases pre-dating the new rules that expressed some approval of screening, see First National Bank of Ipswich v. Peabody Gunner Hill, No. 92-5172-J (Sup. Ct. Aug. 2, 1993; and Thomalen v. Marriott Corp., 1994 U.S. Dist. LEXIS 13650 (D. Mass. 1994).

Inverness Medical Switzerland GMBH v. Acon Laboratories, Inc., 2005 U.S. Dist. LEXIS 12332 (D. Mass. June 23, 2005).  In this patent infringement action Firm A represents Plaintiff, and Firm B is local counsel for Defendant.  While this case was pending, two lawyers moved from Firm B to Firm A.  Accordingly, Defendant moved to disqualify Firm A.  The only involvement of the two lawyers in this case at Firm B was to spend a limited amount of time analyzing whether Firm B had a conflict of interest.  Both lawyers swore that they had no involvement in, or knowledge about, the merits of this action.  The court enforced Massachusetts Rule 1.10(d)(1) as written.  Because the information the moving lawyers had was not “material,” the court denied the motion.

For an excellent guide to clearing conflicts for new lawyers, see Boston Op. 2004-1 (May 2004).  Among other things, it discusses the extent to which a new lawyer should be able to identify his clients at his old firm.  It also recommends that just one or several people at the new firm should be exposed to this information.

Michigan

Lawyers - Yes. Rule 1.10(d) (2). See Michigan Op. R-4 (1989).  Town & Country Apartments v. City of Wixom, 2003 Mich. App. LEXIS 898 (Mich. App. April 8, 2003).  In this property tax appeal case, the lawyer at his new firm signed a motion for extension of time to file and exchange a valuation disclosure.  The court held that the firm should be disqualified.

Sixth Circuit says that ethics rules control.  National Union Fire Ins. Co. v. Alticor, Inc., 466 F.3d 456 (6th Cir. 2006), modified, 472 F.3d 436 (6th Cir. 2007) .  The Michigan rule requires anyone relying upon a screen to notify the tribunal.  Because a law firm failed to do it here, the court held the screen to be ineffective.

Non-Lawyers - Probably.  Mich. Ops. RI-284 (1996) & RI-115(1992).

Minnesota

Lawyers – No.  Lennartson v. Anoka-Hennepin Independent School District No. 11, 662 N.W.2d 125 (Minn. 2003).  Minnesota has a harsh anti-screening version of Rule 1.10 similar to Massachusetts’ version of Rule 1.10, and to the effect of the New York Court of Appeals’ Kassis decision (see New York below).  The Minnesota rule is identical to Restatement Section 124.  In this decision the Minnesota Supreme Court has held that the rule means what it says.  A lawyer had taken a deposition at her old firm in a case against what has become her new firm.  She had read the entire file in preparation for the deposition.  When she changed firms, the new firm erected a screen.  Her old client moved to disqualify the new firm.  The trial court granted the motion.  The appellate court reversed.  The Supreme Court reversed the appellate court.

Mississippi

Lawyers - Probably not. Rule 1.10(b).  But, in Mississippi State Dept. of Health v. Singing River Hospital, No. 1998-CC-00968 (Miss.), the court approved a screen.  Also see Aldridge v. State, 583 So. 2d 203 (Miss. 1991), which involved a public defender who became a prosecutor while one of his appointed cases was pending.  The court held this should not disqualify the entire prosecutor’s office if the office could show an effective screen.

Non-lawyers - Watch out.  The court in Owens v. First Family Fin. Services, Inc., 379 F. Supp. 2d 840 (S.D. Miss. 2005), expressed hostility to screening for non-lawyers.

Missouri

Lawyers - Probably not. Rule 1.10(b), Mo. Op. 2005-0030 (undated), and Mo. Op. 2003-0007 (undated). But, see School Dist. of Kansas City v. AcandS, Inc., 1989 U.S. Dist. LEXIS 10009 (W.D. Mo. 1989); and Hallmark Cards, Inc. v. Hallmark Dodge, Inc., 616 F. Supp. 516 (W.D. Mo. 1985).

In East Maine Baptist Church v. Regions Bank, 2007 U.S. Dist. LEXIS 76430 (E.D. Mo. Oct. 12, 2007), the court held that if the moving lawyer actually represented the client at the old firm, the entire new firm would be disqualified without regard to whether the lawyer had learned any confidences.

Non-Lawyers - Probably not.  Williams v. Trans World Airlines, Inc., 588 F. Supp. 1037 (W.D. Mo. 1984); Mo. Op. 2003-0020 (undated).

Montana

Lawyers - Probably. Rule 1.10(c)(1).

Nebraska

Lawyers - Probably not. DR 5-105(D). See State of Nebraska ex rel. FirsTier Bank, N.A. v. Buckley, 503 N.W.2d 838 (Neb. 1993).

Non-Lawyers - Probably not.  Creighton Univ. v. Hickman, 512 N.W.2d 374 (Neb. 1994).

Nevada

Lawyers - Probably not. Rule 160(2).  See Edwards v. 360 [degrees], 189 F.R.D 433 (D. Nev. 1999); Coles v. Arizona Charlie's, 1997 WL 465416 (D. Nev. 1997); Ciaffone v. Eighth Judicial Dist. Ct., 945 P.2d 950 (Nev. 1997); and Ogilvie v. Eighth Judicial Dist. Ct., No. 28374 (Nev. 1996).  

Non-Lawyers - Yes. In Leibowitz v. Eighth Judicial Dist. Court of Nevada, 78 P.3d 515 (Nev. 2003), the court reversed its earlier holding in Ciaffone v. Eighth Judicial Dist. Ct., 945 P.2d 950 (Nev. 1997).

New Hampshire

Lawyers - Probably not. Rule 1.10(b).

New Jersey

Lawyers - Probably. New Rule 1.10 allows screening provided moving lawyer did not play a "primary role" in the matter in question at the old firm.  Earlier authorities that were negative on screening were New Jersey Op. 667 (1992); Cardona v. General Motors Corp., 945 F. Supp. 968 (D.N.J. 1996); and Dewey v. R.J. Reynolds Tobacco Co., 536 A.2d 243 (N.J. 1988).

In re Gabapentin Patent Lit., 407 F. Supp. 2d 607 (D.N.J. 2005).  This is a multi-district patent infringement case.  Law Firm P represented one of the plaintiffs.  There are five defendants, D1, D2, D3, D4, and D5.  Law Firm D represents D1.  Lawyers X and Y were with Firm D and had principal responsibility for the representation of D1 in this case.  D1 had a joint defense agreement with D2, D3, D4 and D5.  While with Firm D, and pursuant to the joint defense agreement, X and Y became privy to many confidences of the other defendants.  X and Y left Firm D to join Firm P.  Firm P obtained D1’s consent to bring in X and Y, provided a screen be created.  That happened, but then D2, D3, D4, and D5, parties to the joint defense agreement, but not parties to D1’s consent, moved to disqualify Firm P.  The court granted the motion.  The essential holding was that because X and Y had actually become privy to the defendants’ confidences pursuant to the joint defense agreement, Firm P should be disqualified, notwithstanding the screen and D1’s consent.  This is consistent with the majority rule in the joint defense cases. 

Non-Lawyers - Probably.  N.J. Ops. 633 (1989) & 665 (1992).

New Mexico

Lawyers - Probably not. Rule 16-110(B).

New York

State courts - very demanding rule. DR 5-105(D) and 5-108. The New York Court of Appeals has a rule similar to the Restatement (see discussion at the top of this page). Kassis v. Teacher’s Ins. & Annuity Ass’n, 695 N.Y.S.2d 515 (N.Y. 1999). It does not permit screening if the moving lawyer had significant information. It mandates screening if the moving lawyer has information that is not significant, something Model Rule 1.9(b) does not require. See also Casita, L.P. v. MapleWood Equity Partners (Offshore) Ltd., 825 N.Y.S.2d (N.Y. App. 2006) ; R.M. Buck Construction Corp. v. Village of Sherburne, 740 N.Y.S.2d 154 (N.Y. App. 2002); Alicea v. Bencivenga, 704 N.Y.S.2d 578 (N.Y. App. Div. 2000), Cummin v. Cummin, 695 N.Y.S.2d 346 (N.Y. App. 1999); 2006); Casita, LP v. Maplewood Equity Partners (Offshore) Ltd., 815 N.Y.S.2d 493(N.Y. Sup. Ct. 2006); Trusco Bank v. Melino, 625 N.Y.S.2d 803 (S. Ct. 1995).  While somewhat dated, N.Y. State Op. 720 (1999) provides helpful guidance on how a law firm ought to go about clearing conflicts when bringing in a lawyer from another firm.

No disqualification because moving lawyer knew nothing about the case when at the prior firm.  Telesco v. Bateau, 749 N.Y.S.2d 811 (N.Y. App. 2002); Nimkoff v. Nimkoff, 797 N.Y.S.2d 3 (N.Y. App. 2005).  

In Abatement & Decontamination Services, Inc. v. Consolidated Edison Co. of N.Y., Inc., QDS:22703171 (reported in the September 25, 2000, NYLJ), a judge in the New York Supreme Court refused to disqualify a law firm because the lawyer in question ultimately never joined the law firm.  The court was, however, highly critical of the firm because it negotiated with the lawyer while the lawyer was actively handling a law suit against the firm.

For a discussion of screening in New York, see James M. Altman, Conflict-of-Interest Issues Can Derail Job Offers, New York Law Journal, February 16, 2001.

Federal courts - friendlier to screens.  Hempstead Video, Inc. v. Village of Valley Stream, 409 F.3d 127 (2d Cir. 2005) (court, in effect, approved a screen where a law firm was adverse to the current client of an of counsel); Reilly v. Computer Associates Long-Term Disability Plan, 423 F. Supp. 2d 5 (E.D.N.Y. 2006) (friendly to screens); Eugenia VI Venture Holdings, Ltd. v. Glaser, 2005 U.S. Dist. LEXIS 28126 (S.D.N.Y. Nov. 15, 2005) (approved screen); Panebianco v. First Unum Life Ins. Co., 2005 U.S. Dist. LEXIS 7314 (S.D.N.Y. April 27, 2005) (screen inadequate); United States v. Salvagno, 5:02-CR-51 N.D.N.Y. date unknown) (according to the March 7, 2003, edition of Law.com, court held that screen will not work in two-lawyer office); Young v. Central Square School District,  213 F. Supp. 2d 202 (S.D.N.Y. 2002) (new firm too small and screen had not been put in place); Mitchell v. Metropolitan Life Ins. Co., 2002 U.S. Dist. LEXIS 4675 (S.D.N.Y. 2002) (office too small, screen set up two months after lawyer arrived, and lawyer worked closely with two lawyers on the case - court implied that screening might work if circumstances were otherwise); G.D. Searle & Co. v. Nutrapharm, Inc., 1999 U.S. Dist. LEXIS 5963 (S.D.N.Y. 1999); Schwed v. General Electric Co., 990 F. Supp. 113 (N.D.N.Y. 1998); Bank Brussels Lambert v. Chase Manhattan Bank, N.A., 1996 U.S. Dist. LEXIS 1624 (S.D.N.Y. Feb. 15, 1996) (approved screen); Decora Inc. v. DW Wallcovering, 899 F. Supp. 132 (S.D.N.Y. 1995) (new firm too small, moving lawyer worked closely with lawyer on the case in the new firm, and screen set up too late).

Excellent discussion of Kassis.  Papyrus Technology Corp. v. New York Stock Exchange, Inc., 325 F. Supp. 2d 270 (S.D.N.Y. 2004). Papyrus, represented by Frommer Lawrence & Haug (“FLH”), sued NYSE for patent infringement in early 2004.  Before filing the suit, FLH circulated a memorandum to all lawyers asking about potential conflicts.  In response to the memorandum, an associate, Tedd Van Buskirk (“TVB”), informed a partner that he had, until 2001, been an associate in the twelve-person intellectual property department at Milbank, Tweed, Hadley & McCloy.  TVB said that he remembered discussions about a dispute between Papyrus and NYSE, but added that he did not work on that or any other NYSE matter and could not recall learning any confidential information about the matter.  As a result of this disclosure FLH did not assign TVB to this case.  After the case was filed, Milbank confronted FLH with the TVB relationship and showed FLH redacted E-mails about the case in which TVB was one of the addressees.  Milbank also pointed out that TVB had attended weekly meetings of the Milbank intellectual property group, where the matter surely had been discussed.  Lastly, Milbank pointed out that TVB had access to all Papyrus/NYSE documents in Milbank’s document management system.  As a result of Milbank’s disclosures, FLH erected a formal screen between TVB and the case.  NYSE moved to disqualify FLH.  TVB denied knowing anything about the matter.  The court denied the motion, doing an analysis under the leading case in New York on screening, Kassis v. Teacher’s Ins. & Annuity Ass’n., 717 N.E.2d 674 (N.Y. 1999).  Kassis essentially holds that a screen will work if the moving lawyer has information that is unlikely to be significant.  In footnote 9 the court notes that this is the test under Sec. 124 of the Restatement.  At several points the court noted that Milbank’s document management system had the capability to identify what lawyers accessed the Papyrus/NYSE case documents.  However, Milbank did not come forward with any information about who had accessed the documents, presumably because there was no indication that TVB had.  [Note: this case is a clinic on conducting a disqualification proceeding involving a migratory lawyer and screening.  Milbank correctly raised the E-mails, the weekly departmental meetings, and access to its document management system.  On the other hand, the court was impressed by the logic of TVB’s insistence that he knew nothing about the case and Milbank’s failure to come forward with evidence that TVB had accessed relevant documents in its document management system.  We favor screening in these cases and believe New York’s rule is too anti-screening.  However, the court in this case correctly analyzed New York law and came to a sensible solution.]

Crudele v. New York City Police Dep't, 2001 U.S. Dist. LEXIS 13779 (S.D.N.Y. 2001), involves a lawyer moving from public to private employment.  New York DR 9-101(b) allows screening for former public employees.  However, the court disqualified a law firm that had erected a screen, because the law firm was too small (15 lawyers).

Rella v. North Atlantic Marine, LTD., 2004 U.S. Dist. LEXIS 22309 (S.D.N.Y. Nov. 3, 2004).  Lawyer moved from Law Firm A to Law Firm B while there was a matter pending between the two firms.  Lawyer worked on the matter while at A.  A’s client moved to disqualify Lawyer and Firm B.  The court granted the motion.  A principal feature of this case is the ineptitude with which Firm B opposed the motion.  A key finding by the court is that Firm B made no credible showing that it had screened Lawyer from the case in question.

Lott v. Morgan Stanley Dean Witter & Co. Long-Term Disability Plan, 2004 U.S. Dist. LEXIS 25682 (S.D.N.Y. Dec. 23, 2004).  Lawyer changing firms with case between them.  The court disqualified the law firm because it had not set up a screen – the implication being that a screen might have worked.  Battagliola v. Nat. Life Ins. Co., 2005 U.S. Dist. LEXIS 650 (S.D.N.Y. Jan. 19, 2005), involved the same law firm and and opposing parties as Lott.  And, the court disqualified the migratory lawyer.  However, the court declined to disqualify the new law firm provided the firm set up a screen.  Here is another case in which the court said that a screen might have saved the firm, Edwards v. Gould Paper Corp., 352 F. Supp. 2d 376 (E.D.N.Y. 2005). 

King v. Fox, 2005 U.S. Dist. LEXIS 5146 (S.D.N.Y. March 31, 2005).  The court held that a lawyer may represent a client in suing a law firm in which the lawyer had formerly been an employee (associate).  The court held that this is different from representing a client in a suit against another party, which is being represented by the lawyer’s former law firm.  The court held that the former associate owed no fiduciary duty to his former employer, the defendant law firm.  There was no discussion of whether the lawyer had confidences from his former law firm that would have been relevant to this case.

Non-lawyers - maybe.  Mulhern v. Calder, 763 N.Y.S.2d 741 (N.Y. Misc. 2003).  A secretary/paralegal changed firms.  At her former firm she worked on “scores of files.”  One of those files was this case, in which her new firm represents the plaintiff.  The court rejected a less lenient approach taken in Glover Bottled Gas Corp. v. Circle M. Beverage Barn, Inc., 514 N.Y.S.2d 440 (N.Y. App. 1987), and ruled that because the new firm had set up a screen, the defendant’s motion to disqualify the plaintiff’s firm should be denied.  The court said the key issue was whether non-lawyers should be subject to the strict rule applied to lawyers by Kassis v. Teacher’s Ins. & Annuity Ass’n , 695 N.Y.S.2d 515 (N.Y. 1999), and ruled that they should not.

Non-lawyers - federal court.  Dela Raba v. Suozzi, 2006 U.S. Dist. LEXIS 92813 (E.D.N.Y. Nov. 17, 2006) .  Law Firm A is co-counsel with Law Firm B in representing the plaintiffs in this § 1983 case against a county and a county official.  The complaint was filed in March 2006.  Greene, not a lawyer, was an employee of the county, working on employment matters, until he was terminated in December 2005.  In January 2006 Firm A hired Greene as a part-time employee to work on governmental relations matters, more or less as a “marketing consultant.”  Because of this hiring, the defendants moved to disqualify Firms A and B.  Following the filing of the motion Firm A terminated Greene.  In this opinion the magistrate judge denied the motion.  The evidence was pretty clear that while with the county Greene had been privy to sensitive information about the decision-making process that led to this suit.  However, the uncontroverted evidence was that Greene never discussed this case with anyone at either Firm A or Firm B.  The court said that a formal screen was not necessary and was satisfied that, in the court’s words, “a de facto screen was operating . . . by happenstance.” 

North Carolina

Lawyers - Probably. Rule 1.10(c).

Byrd v. Hopson, 2004 U.S. App. LEXIS 16369 (4th Cir. Aug. 9, 2004).  The plaintiff’s lawyer (“A”) witnessed some of the events that gave rise to plaintiff’s causes of action.  The trial court ordered the Lawyer A off the case but allowed Lawyer A’s firm to continue for the plaintiff.  The court ordered Lawyer A’s firm to set up an “ethical wall,” separating A from the other lawyers handling the case.  The appellate court affirmed.  [Note: this is one of those rare opinions recognizing a screen in a context other than that of a lawyer changing firms.  However, ordering the screen makes no sense.  If the lawyer is going to be a witness, the lawyers handling the case ought to be able to prepare him just like any other witness.]

Non-Lawyers - Probably.  N.C. Op. 176 (1994).

North Dakota

Lawyers - Probably not. Rule 1.10(b).

Ohio

Lawyers - Probably. DR 5-105(D).  Kala v. Aluminum Smelting & Refining Co., 688 N.E.2d 258 (Ohio 1998).  Also see Hamrick v. Union Township, 79 F. Supp. 2d 871 (S.D. Ohio 1999). There, the court said that a law firm had to be disqualified because it produced no proof that it had erected a screen.

Sixth Circuit applies ABA Model Rules and disqualifies law firm.  National Union Fire Ins. Co. v. Alticor, Inc., 466 F.3d 456 (6th Cir. 2006), modified, 472 F.3d 436 (6th Cir. 2007) .

Non-Lawyers - Probably.  Green v. Toledo Hospital, 94 Ohio St. 3d 480 (Ohio  2002); Latson v. Blanchard, 1998 Ohio App. LEXIS 4619 (Ohio App. Sept. 30, 1998). 

Oklahoma

Lawyers - Probably not. Rule 1.10(b).

Non-Lawyers - Probably.  Hayes v. Central States Orthopedic Specialists, Inc., 51 P.3d 562 (Okla. 2002).

Oregon

Lawyers - Probably. Rule 1.10 .  See Portland Gen. Elec. Co. v. Duncan, Weinberg, Miller, & Pembroke, 986 P.2d 35 (Or. App. 1999),

Pennsylvania

Lawyers - Yes. Rules 1.10(b) (1) and (2). See Pa. Op. 2005-140 (2005) and Philadelphia Bar Ops. 2006-1 (March 2006) & 91-18 (1991); Dworkin v. General Motors Corp., 906 F. Supp. 273 (E.D. Pa. 1995).  Also see James v. Teleflex, Inc., 1999 U.S. Dist. LEXIS 1961 (E.D. Pa. 1999), in which the court disqualified a firm because it had not complied with all the requirements of Pennsylvania's screening rule.

Norfolk Southern Ry. Co. v. Reading Blue Mountain & Northern RR. Co., 397 F. Supp. 2d 551 (M.D. Pa. 2005).  The plaintiff is a very large railroad.  The defendant is a very small railroad.  After this case was pending for about two years, one of the principal lawyers for the defendant changed firms, moving to the plaintiff’s firm.  The plaintiff’s firm received consent from the defendant’s firm, provided it set up a screen.  When the president of the defendant learned of the consent, he objected.  The defendant moved to disqualify the plaintiff’s firm.  Notwithstanding that the court’s local rules adopt the Pennsylvania Rules – which allow screening – the court granted the motion.  First, the court said that the fact that the screen does not purport to deny the moving lawyer a part of the fee from this case was grounds, without more, to grant the motion.  Another problem was the part of the screening memorandum that said no lawyer in the firm should discuss the case with the moving lawyer.  The court said the provision should have prevented any lawyer from discussing this case anywhere near the moving lawyer, let alone discussing it with him.  In that connection the court noted that the plaintiff’s law firm only had ten lawyers all located in the same office.  Last, the court said that the screening memorandum should have provided that any lawyer who violated it could be terminated.  [Note: the court did not mention whether the failure of the defendant’s law firm to get the consent of the president of the defendant influenced his decision.  Also, the court did not mention whether the size of the plaintiff railroad relative to the size of the defendant made a difference.  But, both of those factors coupled with the size of the plaintiff’s firm and proximity of its lawyers to each other make the court’s ruling not completely off the wall.]

Rule 1.10(b).  Buschmeier v. G&G Investments, Inc., 2007 U.S. Dist. LEXIS 85444 (W.D. Pa. Nov. 19, 2007).  Plaintiff is seeking to execute on a judgment against Defendant.  She subpoenaed entities and persons related to Defendant (the “Related Parties”) to locate Defendant’s assets.  Related Parties moved to disqualify Plaintiff’s law firm (“Law Firm”), and in this opinion the court denied the motion.  This action was filed in 2006.  The basis for the motion was that from 2000 until 2003 Lawyer was at Law Firm and handled several discrete matters for Related Parties.  When he left Law Firm, Lawyer took the Related Parties and the physical files with him.  The bases for the court’s denial were that (1) those matters were not substantially related to this matter, and (2) no lawyer remaining at Law Firm had material information about the Related Parties.  Thus, the court applied Pennsylvania’s version of Model Rule 1.10(b) according to its terms.  In passing, the court noted that Law Firm had “sealed off” Related Parties’ electronic files from all lawyers at Law Firm, but the court did not indicate the importance of the firm having done so.

Non-Lawyers - Probably.  Philadelphia Bar Ops. 80-77 & 80-119 (1980).

Rhode Island

Lawyers - Probably not. Rule 1.10(b). R.I. Op. 91-60 (1991).  See also Falvey v. A.P.C. Corp. 185 F.R.D. 120 (D.R.I. 1999).  But, a federal magistrate judge upheld a screen in Mearthane Prod. Corp. v. Lexmark Int'l., Inc., C.A. No. 00-245 ML (D.R.I. 2001).

Non-lawyers – Recent Rhode Island ethics opinions give reason to believe a screen will work.  R.I. Ops. 2002-02, 97-09, and 92-12.  But, see R.I. Op. 85-08.

South Carolina

Lawyers - Probably not. Rules 1.9(b) and 1.10(a). S.C. Op. 92-23 (1992).

Non-Lawyers - Probably.  S.C. Ops. 29 (1993) & 12 (1991).

South Dakota

Lawyers - Probably not. Rules 1.9(b) and 1.10(a).

Tennessee

Lawyers - Probably.  The new Tennessee Rules of Professional Conduct became effective March 1, 2003.  Tennessee's version of Model Rule 1.10 at (c) & (d) approves screening.  It adds a relatively benign condition that screening will not work if the migratory lawyer was "substantially involved" in the matter in question.  Thus, a lawyer who had taken a couple of depositions and argued a motion or two, may be okay, while the lawyer in charge of the case may not be.  The history of screening in Tennessee is tempestuous.  Both the Tennessee Bar in Op. 89-F-118 (1989) and the Sixth Circuit in Manning v. Waring, Cox, James, Sklar & Allen, 849 F.2d 222 (6th Cir. 1988) had approved a liberal screening rule. However, Clinard v. Blackwood, 1999 Tenn. App. LEXIS 729 (Tenn. App. 1999) muddied things. The appellate court applied a much harsher, anti-screening rule similar to that contained in § 124 of the Restatement and adopted by the New York of Appeals in Kassis v. Teacher’s Ins. & Annuity Ass’n, 695 N.Y.S.2d 515 (1999).  In Clinard v. Blackwood, 46 S.W.3d 177 (Tenn. May 18, 2001) the Tennessee Supreme Court seemingly reversed field and approved the more liberal screening rule, citing Tenn. Op. 89-F-118 (1989).  But, then the court executed a double reverse by ruling that the appearance-of-impropriety test then present in Tennessee's version of the old ABA Model Code should also have been applied by the lower courts.  The court held that their failing to do so was an abuse of discretion and required the Supreme Court to find that there was an appearance of impropriety requiring the firm's disqualification.  Hopefully, the new rule will bring some stability to the situation.

O’Rourke v. O’Rourke, 2007 Tenn. App. LEXIS 375 (Tenn. App. June 15, 2007).  In this post-divorce litigation Lawyer A (“A”) represented Husband (“H”), and Lawyer B (“B”) represented Wife (“W”).  While this case was pending Associate worked for A.  She left A and went to work for B.  H then moved to disqualify B.  The trial court granted the motion.  In this opinion, the appellate court affirmed.  Under Tennessee’s unique Rule 1.10(d)(1), the court found that Associate was “substantially involved” in this case while with A and that, therefore, a screen would not protect B from being disqualified.  There was conflicting evidence about how much Associate actually worked on the case while at A, so the court resolved the conflict by finding that her involvement was substantial.

Sixth Circuit applies ethics rules and disqualifies law firm.  National Union Fire Ins. Co. v. Alticor, Inc., 466 F.3d 456 (6th Cir. 2006), modified, 472 F.3d 436 (6th Cir. 2007) .

Non-Lawyers - Probably, Tenn. Op. 2003-F-147 (2003).  The Commission held that the rule for non-lawyers should be the same as that for lawyers.  It remains to be seen how the "substantially involved" language in the lawyer rule will be applied to non-lawyers.

Texas

Lawyers - Probably not. Rule 1.09(b). Phoenix Founders, Inc. v. Marshall, 887 S.W.2d 831 (Tex. 1994); Henderson v. Floyd, 891 S.W.2d 252 (Tex. 1995).  As to use of work product by successor to the disqualified firm, see In Re Kenneth George - In Re Epic Holdings, Inc., 28 S.W.3d 511 (Tex. 2000).

COC Services, Ltd.  v. CompUSA, Inc., 2002 Tex. App. LEXIS 5687 (Tex. App. August 6, 2002).  While John Vernon was a shareholder at Strasburger & Price, he and several other lawyers from the firm met with COC about possibly representing COC on franchise matters.  Vernon spent several hours with COC.  While the firm ultimately was hired, Vernon did no work on the account.  COC eventually sued CompUSA, and after the court took away a $90 million jury verdict, COC appealed.  While this appeal was pending, Vernon moved from Strasburger to Jenkins & Gilchrist (“J&G”), CompUSA’s counsel in the appeal (and the earlier trial).  COC moved to disqualify J&G.  The appellate court ruled that J&G should stay in the appeal even though the information learned by Vernon at the first COC meetings related to the appeal.  The court felt that the potential harm to COC was greatly outweighed by the harm to CompUSA should J&G be disqualified.  The court did suggest that the subject could come up again if the case were to be retried.  The Texas rules have no counterpart to Model Rule 1.9(b), which deals with lawyers changing firms.  Nor, did the court discuss whether a screen had been erected around Vernon at J&G, thereby implicitly ducking the screening issue altogether.  The court did note that Vernon was found not to have conveyed COC information to the J&G lawyers working on the case, and that Vernon was not working on the case.

Non-Lawyers - Probably.  In Re American Home Products Corp., 985 S.W.2d 68 (Tex. 1998); Arzate v. Hayes, 915 S.W.2d 616 (Tex. 1996); Grant v. Thirteenth Court of Appeals, 888 S.W.2d 466 (Tex. 1994); Phoenix Founders, Inc. v. Marshall, 887 S.W.2d 831 (Tex. 1994); Tex. Op. 472 (1991); In re Barnes, 2003 Tex. App. LEXIS 3086 (Tex. App. April 10, 2003).

Law review.  Burton, Migratory Lawyers and Imputed Conflicts of Interest, 16 Rev. Lit. 665 (1997).

Utah

Lawyers - Probably not. Rule 1.10(b). See SLC Limited v. Bradford Group West, Inc., 999 F.2d 464 (10th Cir. 1993).

Vermont

Lawyers - Probably not. Rule 1.9(b) and 1.10(a). See Vt. Ops. 2005-1 (undated) & 87-7 (undated).

Non-Lawyers - Probably.  Vt. Ops. 97-9 (undated) & 92-12 (undated).  But, see Vt. Op. 85-8 (undated). 

Virgin Islands

Lawyers - Probably not.  Model Rule 1.9(b) (The Virgin Islands use the ABA Model Rules to regulate lawyers.)  But, see Vecc, Inc. v. Bank of Nova Scotia, 222 F. Supp. 2d 717 (D.V.I. 2002), which seemed to approve of screening, but which seemed to put more weight on other aspects of the case. 

        Government Law - "Personally and Substantially" Test.  Richards v. Lewis, 2005 U.S. Dist. LEXIS 23933 (D.V.I. Oct. 14, 2005).  Lawyer was for a time assistant attorney general for the Virgin Islands.  While there she worked on the preliminary aspects of an unlawful transfer claim by a government employee.  After Lawyer left government work, she went into private practice.  She then began representing the very same employee in this case, which arises out of the aforementioned transfer.  The government moved to disqualify Lawyer, but the court held that, under ABA Model Rule (applicable to V.I. lawyers) 1.11, Lawyer had not participated “personally and substantially” on the case while with the government.  She had done no investigation and filed only perfunctory papers.  The court also held that Model Rule 1.9, which would have precluded this representation, does not cover former government lawyers.

Virginia

Lawyers - Probably not. Rule 1.9(b). See Va. Op. 1428 (1992).  In a slightly different context the court, in Tessier v. Plastic Surgery Specialists, Inc., 731 F. Supp. 724 (E.D. Va. 1990), said:

While the information may have been conveyed solely to Mr. Knight, this court has viewed with great skepticism the efficacy of a "Chinese Wall" which, in theory, prevents the communication of confidential information between members of the same firm.

Non-Lawyers - Probably.  Va. Ops. 1832 (2007), 1800 (2004) & 745 (1985).

Washington

Lawyers - Yes. Rule 1.10(e) and cmts [9], [10], & [12]