Waiver Versus Screening

A firm facing an imputed conflict has three ways out, and they differ in who holds the key. Two belong to the firm. Rule 1.10(a) lifts imputation when the prohibition rests on a personal interest of the disqualified lawyer and presents no significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.¹ It also lifts imputation when the prohibition arises under Rule 1.9(a) or (b) out of the disqualified lawyer's association with a prior firm, the firm timely screens that lawyer from any participation in the matter, and the lawyer is apportioned no part of the fee, provided the notice and certification conditions below are also met.² The third way out belongs to the client: a disqualification prescribed by Rule 1.10 may be waived by the affected client under the conditions stated in Rule 1.7.³

The three differ because each answers a different risk. Conflicts rules aim at a significant risk that lawyers will compromise the duties they owe to clients, not at actual harm, so an exit makes sense only if it answers the risk that triggered the rule.⁴ Imputation itself rests on a presumption: when lawyers practice together, the confidential information one holds is regarded as accessible to every other lawyer in the firm. A lawyer who leaves a firm takes with her only the knowledge she actually possessed, not what imputation presumed at the old firm.⁵ Once she joins a new firm, though, the same presumption operates there, and the new firm needs an exit.

The personal-interest exit needs no consent, because its own condition removes whatever a client would be asked to accept. The disqualified lawyer's personal stake may bend that lawyer's judgment, but the exit applies only when the stake presents no significant risk of materially limiting the lawyers who will actually do the work. If no significant risk reaches those lawyers, there is nothing for the client to accept.

The screening exit asks more of the firm, and each condition answers a concern the former client would otherwise have to carry alone:

The firm timely screens the disqualified lawyer from any participation in the matter and apportions that lawyer no part of the fee.⁶
The firm promptly gives the former client written notice that describes the screening procedures, states that the firm and the screened lawyer have complied with the Rules, states that review may be available before a tribunal, and promises prompt responses to the former client's written inquiries or objections.⁷
The screened lawyer and a partner of the firm provide certifications of compliance to the former client, at reasonable intervals on the former client's written request and when the screening ends.⁸

Read together, these conditions make the former client a recipient of information who can monitor compliance, inquire, and object. Nothing in them requires the former client's agreement. Screening is therefore a compliance regime, and waiver is a consent regime. The screen answers the presumption that confidences travel with the lateral lawyer by keeping them from reaching the lawyers who handle the matter, and the notice and certifications let the former client check that it works.

A concurrent conflict falls outside the screening exit. The exit is written only for prohibitions based on Rule 1.9(a) or (b) that arise out of a lawyer's association with a prior firm.⁹ When one lawyer acts for a client while another lawyer in the same firm acts against that same client, the conflict has no prior firm in it, and the firm would be working against someone it represents today. A wall may keep information from passing between the two lawyers, but it leaves the firm's position against its own client untouched, and no screening exception reaches the situation. What remains is waiver by the affected clients.¹⁰

An exam stem that mentions a screen is really asking what kind of conflict the screen is being asked to cure, because the same device succeeds in one setting and fails in the other.

The hinge between the two scenes is the source of the conflict. In the first it comes from a former client, so the risk is carried confidences, and a screen with notice and certifications answers it. In the second it comes from a client the firm represents now, so the risk is divided loyalty, and only the affected clients can accept it. Students lose points in two directions here: by treating the word screen as a universal cure, and by proposing a waiver for a lateral lawyer whose firm has already met every screening condition, which solves a problem the Rule has already solved.

The screening exit is a Model Rule provision, so it helps only where the governing jurisdiction has adopted it. In a jurisdiction that refuses to recognize screening, a lateral lawyer's prior-firm conflict stays imputed to the new firm, no firm-side exit remains, and the affected client's waiver is the way to lift the disqualification.¹¹

Exam Analysis Steps

Because the two exits and the waiver differ in who controls them, the order of the questions matters. The decision sequence runs as follows:

Identify the conflict that disqualifies one lawyer and confirm that Rule 1.10(a) imputes it to the rest of the firm.
Ask whether the prohibition rests on the disqualified lawyer's personal interest in a way that presents no significant risk of materially limiting the remaining lawyers. If it does, imputation does not attach and no consent is needed.
Ask whether the conflict is a Rule 1.9(a) or (b) conflict from a prior firm. If it is, check that the screen was timely, that the lawyer gets no part of the fee, and that notice and certifications are provided, in a jurisdiction that recognizes screening.
If neither exit fits, because the conflict is concurrent or the jurisdiction rejects screening, ask whether the affected client can waive under Rule 1.10(c) by meeting the Rule 1.7 conditions.

Waiver Versus Screening

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