Conflicts and Ethics Screens for “Neutrals” – Missouri Informal Advisory Opinion 2018-03

The American Bar Association modified ABA Model Rule 1.10 in 2009 to allow ethical screens to prevent imputation of conflicts of interest when a lawyer changes law firm. But Missouri and about 20 other states have refused to adopt the 2009 amendment, such that in Missouri a private law firm may not, without client consent, use an ethics screen to prevent imputation when a lawyer joins from another private law firm.

Do not read Missouri’s refusal to adopt the ABA’s 2009 amendment, or some similar change to Missouri Rule 4-1.10, as a sign Missouri never allows a law firm without client consent to use an ethics screen to prevent imputation of a conflict of interest from lawyer to all other lawyers within a firm.

Rather, like virtually every other U.S. jurisdiction, Missouri allows a law firm to use a so-called “non-consensual screen” when a lawyer has changed jobs, and one of the two jobs was at an entity that was not a private law firm.

When a lawyer joins private law firm from a government job, or leaves a private law firm to take a government position, Missouri Supreme Court Rule 4-1.11 explains when a non-consensual screen will prevent imputation.

And when the lawyer instead joins a private law firm (or other law office) after serving as a judge or neutral, Missouri Supreme Court Rule 4-1.12 explains how screens may be used to avoid imputation of conflicts.

Missouri Informal Opinion 2018-03 focuses on a specific application of Rule 4-1.12, when the lawyer joining the firm has previously served as a guardian ad litem on a matter. Informal Opinion 2018-03 states:

Question: May Attorney represent Parent in a motion to modify visitation of a minor child, where Attorney’s current law partner, prior to practicing in partnership with Attorney, was Guardian Ad Litem of the child in two previous matters relating to paternity and custody of the child, and where the child now has a new Guardian Ad Litem?

Answer: Unless Attorney’s law partner obtains informed consent, confirmed in writing from all parties to the proceeding, pursuant to Rule 4-1.12(a), Attorney may not represent Parent unless, in accordance with Rule 4-1.12(c), Attorney’s law partner is timely screened from any participation in the matter and apportioned no part of the fee therefrom, and unless written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of Rule 4-1.12. See also Rule 4-1.12, Comments [4] and [5].

I have helped written ethics opinions before for the Illinois State Bar Association, and see one trick we used at the ISBA present in Informal Opinion 2018-03: the writer of the opinion can set the facts to determine the outcome of the opinion. Here, the question contains three key facts that determine the outcome:

• Attorney is seeking to represent Parent, while Partner served as the GAL
• Partner was the GAL for Child (and not a sibling) at a prior firm
• Child now sees a new GAL

If you change any of these facts, it would alter or at least complicate the analysis. If, for example, Attorney had served as GAL and now wanted to represent parent, Attorney would likely need to secure consents from all impacted persons.

Another important aspect of Informal Opinion 2018-03 is a reminder that, even where non-consensual screens may be used to prevent imputation of conflicts, the exact requirements for erecting an effective ethics screen vary by rule. Rule 4-1.12, for example, requires that “written notice [be] promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this Rule 4-1.12.”

Rule 4-1.11 relating to former government lawyers and Rule 4-1.18 relating to dealings with prospective clients address written notice slightly differently. For a non-consensual screen to be effective under Rule 4-1.11, “written notice [must be] promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this Rule 4-1.11.”

Rule 4-1.18 meanwhile does not require written notice to the declined prospect for an ethics screen to be effective. But the Comment to Rule 4-1.18 does advise lawyers, “Notice, including a general description of the subject matter about which the lawyer was consulted, and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.” (Emphasis added)

If you want to read more about ethics screens, or review what is required to erect an effective ethics screen, you may want to check out my article, “Elements of an Effective Ethics Screen,” published by the ABA/BNA Lawyers Manual on Professional Conduct in September 2011.