Contrast With Private Firm Screening

Contrast With Private Firm Screening

Private firms have a screen of their own, and its resemblance to the government screen causes most of the confusion between the two. Rule 1.10(a)(2) applies when the prohibition rests on Rule 1.9(a) or (b) and arises out of the disqualified lawyer's association with a prior firm. Its first condition is that the lawyer be timely screened from any participation in the matter and apportioned no part of the fee.¹ Rule 1.11(b)(1) states the same two conditions, and the last sentence of Rule 1.11(c) repeats them as the cure for confidential government information.² On the screen and the fee, then, the regimes agree. They part over what the firm owes the party left behind.

A private-firm screen is needed because a lateral lawyer brings knowledge along. Under Rule 1.10(a), the knowledge of one lawyer in a firm is imputed to every other lawyer there, so confidential information held by one is treated as available to all. A lawyer who departs, however, sheds the “taint” of imputed disability at the old firm's door and takes only what the lawyer actually knew, not what imputation presumed while the lawyer practiced there.³ The knowledge the new firm must contend with is therefore the lawyer's own.

The private-firm route also requires notice to the former client, and Rule 1.10(a)(2)(ii) says what that notice must contain. Written notice must be given promptly to any affected former client so that the former client can ascertain compliance, and it must include four items:⁴

1. A description of the screening procedures the firm has employed.
2. A statement of the firm's compliance and of the screened lawyer's compliance with the Rules.
3. A statement that review may be available before a tribunal.
4. An agreement by the firm to respond promptly to any written inquiries or objections from the former client about the screening procedures.

The duty outlasts the letter. Rule 1.10(a)(2)(iii) requires certifications of compliance with the Rules and with the screening procedures, from the screened lawyer and from a partner of the firm. They are due at reasonable intervals on the former client's written request and again when the screening procedures terminate.⁵ The four items give the former client something to examine, a place to take an objection, and a promise of an answer. The certifications keep the firm answerable for as long as the screen lasts.

Rule 1.11(b)(2) asks for far less. Written notice must be given promptly to the appropriate government agency to enable it to ascertain compliance with the Rule.⁶ The recipient is the agency, not a former client. The provision lists no required contents, says nothing about tribunal review, asks for no promise to answer inquiries, and calls for no certifications from the lawyer or a partner. A firm that screens the lawyer, pays the lawyer no part of the fee, and gives the agency prompt written notice has met what Rule 1.11(b) requires.

Rule 1.10(d) keeps the two regimes apart. It sends the disqualification of lawyers associated in a firm with former or current government lawyers to Rule 1.11, so the notice and certification terms of Rule 1.10(a)(2) do not travel with a government lawyer.⁷ The same holds in reverse. A lateral hire from a private firm falls outside Rule 1.11, and the lighter notice to an agency has no application to that lawyer. The first question on any stem is therefore whether the lawyer's earlier service was public or private, because that fact selects the rule and the rule supplies the notice.

The distinction sets a common exam trap. A stem describes a firm that hires a former agency lawyer, screens the lawyer, gives the lawyer no part of the fee, and notifies the agency, and an answer choice objects that the firm never sent certifications or a statement about tribunal review. That objection imports a private-firm requirement into a government-lawyer problem.

The trap also springs the other way: a private firm cannot rely on the government standard for a lateral hire.

The two firms behaved almost identically on the screen and the fee. What separates them is the earlier employer, which decides who receives the notice and how much it must say.

The regimes also differ in who may lift the bar. Rule 1.10(c) lets the affected client waive a disqualification the rule prescribes, under the conditions stated in Rule 1.7.⁸ The government route has its own permission, the appropriate agency's informed consent, confirmed in writing, under Rule 1.11(a)(2), which releases a lawyer from the bar on representing a client in a matter the lawyer handled personally and substantially as a public officer or employee.⁹ One permission comes from the private client who was affected, and the other comes from the agency.

Side by side, the two regimes compare as follows:

• Screen and fee: both require that the disqualified lawyer be timely screened and apportioned no part of the fee.¹⁰
• Notice recipient: Rule 1.10(a)(2) directs notice to the affected former client, and Rule 1.11(b)(2) directs it to the appropriate government agency.¹¹
• Notice content: the private-firm notice must contain four listed items, while the government notice need only enable the agency to ascertain compliance.¹²
• Certifications: the private-firm route adds certifications from the screened lawyer and a partner, on request and at termination, and the Rule 1.11(b) text contains none.¹³
• Permission: the private route allows a client waiver under Rule 1.7, and the government route turns on the agency's informed consent under Rule 1.11(a)(2).¹⁴