Concept
Firm Imputation and Screening
Former judge, arbitrator, mediator, or other third-party neutral
Firm Imputation and Screening
Rule 1.12(a) disqualifies one lawyer. Paragraph (c) decides whether that disqualification spreads to the lawyer's colleagues, and its default answer is yes. If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue the representation in the matter unless the conditions that follow are met.1 “Undertake or continue” covers both ways the problem arises. A firm may be asked to accept a matter after it has hired the former neutral, or a firm already working on a matter may hire the former neutral partway through.
The default comes from the general law of firms. Under Rule 1.10(a), when lawyers practice together, the knowledge of one is imputed to every other lawyer in the firm, so confidential information that one lawyer possesses is regarded as accessible to all.2 Lawyers call this imputation, because the conflict of one lawyer is attributed to the whole firm. Paragraph (c) carries that presumption over to the firm of a former neutral, and then offers a way out.
The way out is screening, which walls the disqualified lawyer off from the matter inside the firm. Screening is not available for every imputed conflict. For lawyers who move between private firms, the American Bar Association's House of Delegates rejected ethical screening as recently as 2001, voted to postpone a proposal indefinitely in 2008, and approved screening only in February 2009, by a vote of 226–191.3 Paragraph (c), by contrast, itself authorizes a screen for the firm of a former neutral, on conditions. Rule 1.11 shows a similar two-level design for former government lawyers. Rule 1.11(a) bars the lawyer from matters in which the lawyer participated personally and substantially, meaning directly and in more than a ministerial way.4 Rule 1.11(c) separately restricts the firm when the representation would be adverse to a person about whom the lawyer obtained confidential government information that could be used to that person's material disadvantage.5 Rule 1.12(a) uses the same “personally and substantially” test for neutrals, and paragraph (c) is where it addresses the firm.6
Paragraph (c) sets its conditions in two parts. The first subsection covers the two that operate inside the firm, the screen and the fee bar. The second covers the notice that carries the firm's account to the parties and the tribunal.
Timely Screen and No Fee Share
Paragraph (c)(1) gives the firm two conditions to meet inside its own walls. The disqualified lawyer must be “timely screened from any participation in the matter,” and must be “apportioned no part of the fee therefrom.”7 One court applying the rule describes the same pair, noting that it parallels the rule for former public attorneys: the disqualified attorney must be screened from participation and receive no share of the fee.8 The conditions are joined by “and,” so meeting one does not excuse failing the other. A firm that builds a careful wall but pays the lawyer out of the matter's fee has satisfied half the paragraph, and a firm with clean pay and a sloppy wall has satisfied the other half. Each condition answers a different risk. The screen blocks the channels through which information could travel, and the fee bar removes any motive to open them.
The word “timely” carries the first condition. Its test looks to when the firm should have seen the need, not to when an opponent objected. The screen must be in place as soon as the need for it is or should be anticipated, and a screen assembled in response to an expected motion to disqualify arrives too late. Because the test includes “should be anticipated,” a firm cannot defend a late screen by saying nobody had focused on the conflict. The need becomes apparent at one of two moments: when the firm hires a former neutral who handled a matter the firm is already working on, or when a client brings the firm a matter that one of its lawyers handled as a neutral.
The insistence on early action follows from the screen's single job, which is to keep information from moving. Information that passes before the screen exists cannot be recalled, and the opposing party, who cannot see inside the firm, has no way to learn whether anything was said during the gap. A screen built after a motion is filed looks more like a litigation tactic than a safeguard.
A screen that goes up on schedule must also work. The rule lists no required measures. It asks only that the lawyer be screened “from any participation in the matter,” and that breadth is demanding. A screen that keeps the lawyer off the formal team but permits a quick opinion in the corridor leaves participation in place. Firms commonly combine an instruction that no one discuss the matter with the screened lawyer, restricted access to paper and electronic files, physical separation from the team, and pay unconnected to the matter's fee. Each measure closes a different channel.
The fee condition covers what a wall cannot. A screen depends on the disqualified lawyer's own compliance, because that lawyer holds the information and a breach would be hard for anyone else to detect. A lawyer who stood to share in the fee would have a direct financial stake in the firm's success in the matter, which is a motive to evade the screen and help the lawyers handling it. Barring any share of the fee removes the motive at its source, so the screen no longer rests on the lawyer's good conduct alone.
The condition bars a share of this matter's fee, and it does not require the firm to stop paying the lawyer. The commentary to the parallel government-lawyer rule draws the line: a salary or partnership share established by prior independent agreement is permitted, but compensation that directly relates the lawyer's pay to the fee in the disqualified matter is not. That line is the sensible guide for a former neutral. A fixed salary does not move with the outcome, so helping the team earns the lawyer nothing. A bonus equal to a percentage of the fee in the screened matter, or a raise triggered when that matter settles, ties pay to the matter and violates the condition even if the lawyer never opens the file.
Two misunderstandings recur. The first is to think a screen cures the lawyer's own disqualification. It does not. Paragraph (a) continues to bar the former neutral personally, and the screen exists to relieve the other lawyers in the firm. The second is to treat the screen and the fee bar as the whole of paragraph (c). A firm with a timely screen and clean compensation still fails if it omits the prompt written notice taken up next.
Prompt Written Notice
Rule 1.12(c)(2) adds the last condition: “written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this Rule.”10 The notice must be written, must be prompt, and must reach both the parties and any appropriate tribunal. It must also do enough to let them check whether the firm has done what paragraph (c) demands. The screen and the fee bar describe what the firm does inside its walls, and the notice governs what the firm tells the people outside them.11
The reason for an outward-facing condition follows from what a screen is. Every part of it sits inside the firm: the no-discussion instruction, the restricted files, the separate office, the pay arrangement. An opposing party or a tribunal cannot see any of it, so without notice they cannot know whether a screen exists, whether it went up in time, or whether it holds. Notice supplies that information while the matter is still open, when an objection can still prevent harm. Information that has crossed a failed screen cannot be recalled.
Each descriptive word in the rule does separate work. Writing fixes what was disclosed and when, so a later dispute over timeliness can be settled on a record and not on competing recollections. Promptness ties the notice to the screen. A firm that must announce its screen soon has every reason to build it early and to be able to prove when it did. The rule sets no number of days, and the natural moment is when the firm accepts the matter or hires the former neutral. The purpose clause also sets the standard for content. A letter saying only that the firm has taken appropriate steps gives its readers nothing to test. A letter that names the screened lawyer, identifies the earlier neutral role and the matter, and describes the instructions, file restrictions, and fee arrangement lets them check the firm's account.
The two firms built the same wall and kept the lawyer off the fee, so nothing in their internal measures separates them. What separates them is whether the people entitled to check were told. The first firm cannot repair its lapse by pointing to the quality of its wall, because the conditions of paragraph (c) operate together. The reverse is equally true. A prompt letter cannot rescue a firm whose screen went up late or whose lawyer shares in the fee, since notice is an additional condition and does not replace the other two.
The second firm's story also marks the line between notice and consent. Paragraph (a) lets all parties to the proceeding lift the former neutral's own bar by giving informed consent, confirmed in writing. If they did, the lawyer would not be disqualified and paragraph (c) would never come into play.12 Paragraph (c)(2) asks for no agreement from anyone. The other side must be told, and it need not approve. A rule that gave the opposing party a veto over the firm's staffing would let that party defeat the screen by withholding agreement. What the rule gives that party instead is the means to verify and to object.
The notice condition should be read from the rule's own text and not from summaries of it. One court describing paragraph (c) treats it as parallel to the rule for former public attorneys and says that notice must be given to the appropriate tribunal.13 The rule itself names the parties as well as the tribunal,14 and the parties have the strongest reason to check the screen.