Arizona Attorney - January 2016

endnotes

These admonitions are
self-explanatory.
Conclusion

New ER 1. 10(d) is better. Many lawyers
who want to change firms no longer will
confront the anxiety of wondering whether
joining a particular firm will cost that firm
work or the anxiety of exposing inherently
uncertain job change plans to a current em-
ployer. It was right for Arizona to try some-
thing different when it adopted former ER
1. 10(d) in 2003. And it is right for Arizona
to have recognized that rule’s flaws, and to
move in a different direction.

1. See ARIZ. CONST. arts. III, VI.

2. David D. Dodge, When Lawyers Change Firms, ARIZ. ATT’Y, Oct. 2011, at 8.

3. By “disqualifying,” I mean that term in its ethical sense rather than in the sense of a court disqualifying a lawyer or firm from representing a client in a court proceeding.

4. See ER 1. 10 cmt. [ 4].

5. The very narrow circumstances of the base case are worth emphasizing.

If the Matter is a litigation matter, then Lawyer obviously may not ethically take Client C’s representation in the Matter itself to Firm T.

See ER 1. 7(b)( 3). And if the Matter is not a litigation matter, or Lawyer wants to take other work of Client C’s to Firm T, then given the pendency of the Matter, Lawyer may do so only with both Client C’s and Client T’s consent, see ER 1. 2(c), 1. 7(b), mooting any need to apply ER

1. 10(d)’s nonconsensual screening rule. So the only situation our base case need address is the one in which Lawyer leaves Client C behind as a client—conferring “former client” status on Client C—and joins Firm T.

6. ABA Model Rule 1. 10 provides: (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1. 7 or 1. 9, unless … ( 2) the prohibition is based upon Rule 1. 9(a) or (b), and arises out of the disqualified lawyer’s association with a prior firm, and (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; (ii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule, which shall include a description of the screening procedures employed; a statement of the firm’s and of the screened lawyer’s compliance with these Rules; a statement that review may be available before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures; and (iii) certifications of compliance with these Rules and with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the former client’s written request and upon termination of the screening procedures.

7. See, e.g., A LEGISLATIVE HISTORY: THE DEVELOPMENT OF THE ABA MODEL RULES OF PROFESSIONAL CONDUCT, 1982-2005, at 259-70, 281-86

(2006); see also Andrew F. Halaby, Some Practical Thoughts on Private Lateral Screening, presented at the ABA Business Law Section Annual Meeting (Sept. 19, 2015), available at www.americanbar.org/content/ dam/aba/events/business_law/2015/09/annual/materials/on-the- move-201509.authcheckdam.pdf.

8. See A LEGISLATIVE HISTORY, supra note 7, at 255-56.

9. See Summary of House of Delegates Action on Ethics 2000 Commission Report, available at www.americanbar.org/groups/professional_respon- sibility/policy/ethics_2000_commission/ e2k_summary_2002.html.

10. See Eberle Design, Inc. v. Reno A&E, 354 F. Supp. 2d 1093, 1097

(D. Ariz. 2005).

11. See Roosevelt Irrigation Dist. v. Salt River Project Agric. Improvement & Power Dist., 810 F. Supp. 2d 929, 947 (D. Ariz. 2011).

12. See, e.g., In the Matter of Petition [R-13-0046] to Amend ERs 1. 10, 1. 11, 1. 12, and 1. 18, and ER 1. 10 Comment [ 8], Rule 42, ARIZ.R.S.CT., Comment in Support of Petition and Request for Expedited/Provisional Adoption filed Feb. 21, 2014, available at www.azcourts.gov/ Rules-Forum/aft/427.

13. See In the Matter of Rule 42, ERs 1. 10, 1. 11, 1. 12, and 1. 18 and ER 1.0 Comment [ 8], Rules of Sup. Ct., No. R-13-0046, Order Amending ERs 1. 10, 1. 11, 1. 12, 1. 18, Comments to ER 1. 10, and Comment [ 8] to ER 1.0, Rule 42, ARIZ.R.S.CT., filed Aug. 27, 2015, available at www.azcourts.gov/Portals/20/2015Rules/R-13-0046.pdf.

14. ER 1. 10(d)( 2).

15. Id.

16. New ER 1. 10(d)( 3). Comparable provisions have been added to ERs 1. 11, 1. 12, and 1. 18.

17. See supra note 6.

18. New ER 1. 10(d)( 4). A comparable provision has been added to ERs 1. 11, 1. 12, and 1. 18.

19. If the matter handled by Firm T is not the same as the Matter on which Lawyer worked while at Firm C, then the first question will be whether the two matters are substantially related within the meaning of ER 1. 9(a). Even if they are, screening will be available—provided Firm T complies with the other provisions of ER 1. 10(d)—so long as Lawyer did not have “primary responsibility” for the Matter at Firm C.

20. See IND. R. PROF’L CONDUCT 1. 10(c)( 1).

21. See, e.g., WEBSTER’S THIRD NEW INT’L DICTIONARY (UNABRIDGED) 1800 (2002) (“1a: first in order of time or development … 2a: first in rank or importance: CHIEF, PRINCIPAL”). To interpret the new exception more broadly would confront the twin realities that (a) the Supreme Court presumably was trying to remedy the former rule’s vagueness—an effort that would be undermined by interpreting the word “primary” to mean something other than what it plainly means, and (b) the Court was presented with the broader alternative of defining the exception by whether Lawyer had a “substantial role” in the Matter, and rejected that alternative. Indeed, one of the primary flaws in the “litigation exception” of former ER 1. 10(d)( 1) was its use of that same murky term.