Concept
Conditions for Avoiding Imputation
Imputation to the new firm and screening
Conditions for Avoiding Imputation
Rule 1.11(b) starts from imputation. When a lawyer is disqualified under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue the representation in that matter unless the conditions that follow are met.1 The burden therefore falls on the firm. A firm that hires a former government lawyer and wants a matter the lawyer is barred from must show, with facts it controls, that it has done each thing the rule lists and has done it on time.
Three conditions follow. The disqualified lawyer must be timely screened from any participation in the matter. The lawyer must be apportioned no part of the fee. And written notice must be promptly given to the appropriate government agency so that the agency can ascertain compliance.2 The conditions are cumulative, so a firm that misses one stays disqualified however carefully it handled the other two. None can stand in for another, because each guards against a different weakness. The screen keeps information and influence from passing between the lawyer and the team. The fee restriction removes the lawyer's financial reason to help the team informally. The notice lets the agency, whose interest the participation bar protects, check the firm's measures instead of taking the firm's word. A flawless screen does nothing about a lawyer who shares in the fee, and a fee waiver does nothing about a lawyer who sits in on strategy meetings.
The agency's consent is not on the list, and the omission reflects the different jobs of the two cures. Informed consent, confirmed in writing, works on the lawyer's own bar. Under paragraph (a)(2) it removes the disqualification, and a lawyer who is not disqualified leaves nothing to impute.3 Paragraph (b) deals with a bar that still stands. It lets the firm proceed over that bar by meeting its three conditions, without first obtaining the agency's approval, and the agency's part is to receive notice.
Each condition has its own content and its own timing problem, so they are best learned one at a time. Timely screening comes first.
Timely Screening
Rule 1.11(b)(1) requires that the disqualified lawyer be timely screened from any participation in the matter, and the same clause adds the fee restriction taken up in the next subsection.4 Three questions govern the screening half: what counts as a screen, how much of the matter it must cover, and when it must exist. A screen that answers one of them well can still fail on another.
Rule 1.0(k) defines screening as the isolation of a lawyer from any participation in a matter through procedures that the firm imposes in time and that are reasonably adequate under the circumstances to protect the information the isolated lawyer is obligated to protect.5 Each phrase sets a separate test. The target is any participation, so a lawyer who never discloses a confidence but sits in on strategy sessions or reviews drafts has still participated. 'Procedures' means measures actually operating inside the firm, which a promise to behave does not supply. 'Reasonably adequate under the circumstances' makes the standard flexible, so a two-lawyer office sharing a suite and a large firm with separate floors are each measured against what they could realistically do. And 'in time' brings us to the third question.
Timing matters because imputation rests on the premise that lawyers in one firm share what they know. A screen asks the court to set that premise aside for this lawyer and this matter, and it can justify the request only if it was working when information could have moved. Information that passes before the wall exists cannot be recalled. A wall assembled after a disqualification motion is anticipated also looks like a litigation tactic, because a court cannot tell whether it reflects respect for the lawyer's duties or a wish to win the motion. For both reasons, a screen that is belatedly cobbled together as a tardy response to an anticipated motion to disqualify does not satisfy the rule.6
The standard is that the screen must be in place as soon as the need for it is or should be anticipated.7 The need exists once two facts coexist in the firm: a lawyer who is personally barred and a matter from which that lawyer is barred. The screen is therefore ordinarily due when the lawyer arrives, if the firm already has the matter, and when the firm takes the matter, if the lawyer already works there. The words 'should be anticipated' keep the firm from waiting for certainty. A conflict check that shows a current lawyer supervised the very matter a prospective client has brought gives the firm notice at once, so the wall must go up before the engagement begins.
The rule prescribes no list of devices, but the measures firms commonly use serve recognizable purposes, and the choice among them turns on which combination blocks both information and influence in the firm's own circumstances:
- a written instruction to the barred lawyer and the matter team not to discuss the matter with each other, which closes the hallway channel;
- locked cabinets and access-restricted electronic folders, which keep the lawyer from reaching information even when no one speaks;
- physical separation of the lawyer's office from the team's workspace, which matters most when many people work on a large matter in close quarters; and
- exclusion of the lawyer from meetings, circulation lists, and status reports on the matter.
Exclusion from the matter's profits completes the protective picture, but Rule 1.11(b)(1) states it as a separate condition because it addresses the lawyer's incentive and not the movement of information.8
The memo was the cheapest part of the work. Restricting access to the folder and moving the new hire's office would have closed both gaps. Timing and adequacy are independent tests, and a screen must pass each.
Two decisions show how the timing test plays out when the wall goes up at different moments. In Haagen-Dazs v. Perche No Gelato, a lawyer carrying information from a former client joined a firm that was handling litigation against that client. The firm built no screen until the litigation had begun and a motion to disqualify was expected, so the screen was untimely and the firm was disqualified. The case involved a lawyer moving between private firms and does not apply Rule 1.11. It is useful here because the definition in Rule 1.0(k) governs wherever the Rules call for a screen, and what it says about timing does not change with the lawyer's former employer.9
Armstrong v. McAlpin falls on the other side of the line. The firm a receiver retained included a former SEC supervisor of the agency's original case against the same defendants. At the first meetings between the receiver and the firm they agreed to wall him off, and the agency and the court later approved the arrangement. The screen existed from the outset, so there was no period in which the lawyer and the team could have shared anything unprotected. The approvals were added comfort, since the rule requires that the agency receive notice and does not make its consent a condition of an effective screen.10 What separates the two decisions is when the wall went up relative to the event that created the need for it. In Armstrong it existed from the start. In Haagen-Dazs it appeared when a motion was expected, and a screen assembled then cannot undo what colleagues may already have shared.
On an exam, a stem reporting that the firm built its screen after the other side threatened or filed a disqualification motion describes an untimely screen, and the firm fails the condition however thorough the wall looks. A stem reporting a prompt written instruction while the files stay open to everyone describes a timely but inadequate screen, which fails for a different reason. The last sentence of Rule 1.11(c) uses the same words, conditioning a firm's undertaking or continuing the representation on the lawyer being timely screened from any participation and apportioned no part of the fee, so the timing analysis carries over to the information-based bar.11
No Share of the Fee
Rule 1.11(b)(1) adds a second condition in the same clause as the screen: the disqualified lawyer must be apportioned no part of the fee from the matter.13 Because the conditions are cumulative, an excellent wall does not save a firm whose barred lawyer shares in what the matter earns, and clean books do not save a firm whose wall went up late. The operative word is apportioned. The question is whether any portion of the fee is allocated, credited, or paid to the lawyer by any route.
The condition exists because a screen is built from instructions, access limits, and separate offices, and anyone inside the firm who wants to cross it can. The person with the strongest reason to cross is the lawyer whose earnings rise if the firm wins. That lawyer has a personal motive to answer a colleague's question in the corridor or to point the team to the right file, and no outsider is likely to detect either act. The fee limit removes the motive by denying the lawyer any direct financial stake in the matter that would tempt the lawyer to defeat the screen and help the team.14 It also leaves a record, because compensation can be checked against a payroll or distribution document in a way that a promise to behave cannot.
The condition does not require the lawyer to work for nothing or to give up membership in the firm. Comment 6 to Rule 1.11 provides that the paragraphs do not prohibit a lawyer from receiving a salary or partnership share established by prior independent agreement.15 Ordinary pay is permitted because a salary or share fixed before and apart from the matter does not move when the matter is won, lost, or billed, so the lawyer gains nothing by helping the team. What the comment forbids is compensation that directly relates the lawyer's pay to the fee in the matter from which the lawyer is disqualified.16 Both statements point to one question: whether the matter's fee is an input into what the lawyer is paid.
Bonus formulas deserve the closest look, because the matter's fee can enter a calculation without anyone naming it.
The two arrangements differ in one respect: whether the matter's fee feeds the lawyer's pay. The quality of the wall and the lawyer's good faith can be identical in both, and neither decides the question.
The third and fourth steps do the real work, because they catch the arrangement that never mentions the matter but still carries its fee into the lawyer's paycheck.
The same words close Rule 1.11(c), which conditions a firm's undertaking or continuing a representation on the disqualified lawyer being timely screened and apportioned no part of the fee.17 The compensation audit therefore also governs the firm's cure when the lawyer's bar rests on confidential government information.
Notice to the Agency
Paragraph (b)(2) adds the third condition, a disclosure to the government: written notice must be promptly given to the appropriate government agency so that the agency can ascertain compliance with the rule.20 The condition stands on the same footing as the screen and the fee restriction, so a firm with a sound wall and no fee share has still not met the rule until the notice goes out. The rule fixes three features of the notice: it must be written, it must be prompt, and it must reach a particular recipient. The recipient needs the most care.
The recipient is the appropriate government agency, ordinarily the agency the disqualified lawyer previously served.21 The rule does not send the notice to the court where the matter is pending or to the opposing party, and the choice follows from whose interest the participation bar protects. The agency is the former employer, so it is best placed to judge what the lawyer handled and whether a screen fits that involvement. A tribunal or an adversary sees only what the firm chooses to say. The agency is also the party whose informed consent under paragraph (a)(2) would lift the lawyer's bar,22 which confirms that the rule treats it as the interested party throughout.
The notice serves a checking function. The firm certifies the other two conditions for itself, since only the firm sees its folder permissions and its compensation records, and the firm profits if it judges those arrangements adequate. Notice lets someone with no stake in the firm's revenue ascertain whether the screen exists and the fee restriction is observed. That function explains the word 'promptly,' because the check has value only if it arrives early enough to affect the representation. A notice sent when the matter is nearly over serves no checking purpose.
Notice informs the agency of what the firm has done and does not ask its permission. The text of paragraph (b) lists notice and does not list consent, and the agency's consent to the screening is not required for the screening to dissipate the imputed disqualification.23 A firm that has met all three conditions has nothing further to wait for, so the agency's silence leaves the firm's position intact. The structure suggests that the rule aims at verification and not at veto, with the screen carrying the protective weight.
The agency therefore appears in Rule 1.11 in two roles with different powers. Under paragraph (a)(2), its informed consent, confirmed in writing, removes the lawyer's own disqualification, so nothing is left to impute and the firm need not rely on a screen.24 Under paragraph (b)(2), the lawyer's bar still stands, the firm relies on a screen to proceed despite it, and the agency receives notice and tests compliance. In the first setting the agency holds a power of permission over the lawyer, and in the second it holds a power of inspection over the firm. An answer that makes the firm obtain consent before it may rely on a screen has borrowed the cure from the wrong paragraph, and an answer that treats notice as a substitute for consent makes the opposite mistake.
The second firm's reasoning reflects a common instinct, that a screen which works makes the notice redundant. The rule answers that the notice is what lets someone other than the firm check the screen, so the wall's actual effectiveness cannot replace it, and the text contains no exception for a firm confident in its own wall.
The notice condition belongs to paragraph (b) and does not travel with the screen into paragraph (c). The last sentence of Rule 1.11(c) lets a firm undertake or continue a representation when the disqualified lawyer is timely screened and apportioned no part of the fee, and it states no notice requirement.25 The firm's screen under paragraph (c) is taken up in a later section.
The pairing of screen and notice is not new to the Model Rule. The opinion in Ryan-Walsh, Inc. v. M/V Ocean Trader quotes a version of the rule under which the lawyer may not represent a private client but a firm may undertake or continue the representation if the disqualified lawyer is screened and apportioned no part of the fee and written notice is promptly given to the appropriate government agency to enable it to ascertain compliance.26 Wording differs from one version of the rule to another, so a student answering a question keyed to the Model Rules should rely on the Model Rule text: written notice, promptly given, to the appropriate government agency.