Under certain circumstances Arizona permits the use of “ethical
walls.” A timely, effective ethical wall can avoid disqualification
of the firm.
How to Avoid Disqualification with
Effective Ethical Screening
DANIEL W. HAGER, CORPORATE COUNSEL, AHERN INSURANCE BROKERAGE
A recognized expert in lawyers’ malpractice prevention and legal ethics, Daniel
has provided consultations and risk management services to law firms for more
than 20 years. Before joining AHERN, Dan was a partner at AV-rated Roeca
Haas Hager LLP, where he defended lawyers against malpractice and other
claims for more than 25 years.
To speak to an AHERN professional, call (800) 282-9786.
AHERN is a Member Benefit Provider of the State Bar of Arizona. AZ Lic #1097042
Consider this Scenario:
You want to hire a lawyer with great experience in your practice areas. Knowing that lawyers switching firms can
bring conflicts of interest that can
“infect” their new firms, you run the
names of her previous clients through
your conflicts software. You discover
she worked briefly for a client in a case
in which your firm is representing the
The client she formerly represented
will not waive the conflict.
Fortunately, under certain circumstances Arizona permits the use of “ethical
walls” to screen lawyers from sharing
confidential client information in such
ongoing matters at their new firm. A
timely, effective ethical wall can avoid
disqualification of the firm.
The key to getting the protection of
ethical walls is setting them up effectively.
Under the doctrine of imputed disqualification, if one lawyer is disqualified
from representing a client in a matter,
the entire firm is disqualified. Before
the concept of ethical screening arose,
only the informed written consent of
the affected client could prevent imputed disqualification of the firm.
However, under Arizona Rule of Pro-
fessional Conduct ER 1. 10(d), imputed
disqualification will not apply where:
( 1) the disqualified lawyer did not have
primary responsibility for the matter;
n Prohibit any communication about
the matter between the screened
person and those working it (law-
yers and staff), prohibiting any ac-
cess to files or any other information
about the matter.
n Create as much physical separation
as possible between those working
on the matter and the screened
n Use the best technology available
to you to limit access to physical
and electronic files for the matter
(including document management
software to limit access to electronic
files and, for physical files, segregat-
ing and labelling them to prohibit
access by the screened person).
n Prepare, send, and maintain a copy
of a notice to the affected client that
meets ER 1. 10(d)( 3).
n Train all personnel on conflicts of
interest and ethical screening pro-
cedures (and the penalties for
breaching an ethical wall).
n Have a trained person in charge of
creating and maintaining all ethical
n Maintain and preserve detailed rec-
ords establishing all steps taken and
By the timely taking and documentation of these steps, you can greatly reduce your firm’s risk of disqualification.
( 2) that lawyer is timely screened from
any participation in the matter and
receives none of the fee (other than a
salary or previously agreed partnership
share); ( 3) the affected former client is
promptly given written notice, including a description of the screening procedures; when they were adopted; a
statement that the former client’s material confidential information has not
been disclosed or used; and an agreement the firms will respond promptly
to written inquiries or objections by
the former client; and ( 4) the screened
lawyer and new firm reasonably believe the steps taken will effectively
prevent the former client’s confidential information from being disclosed.
The Rule does not specify what pre-
cisely must be done to create an effec-
tive ethical wall. However, the follow-
ing steps will help protect the former
client’s confidences and create an eth-
ical wall that a court would more likely
n Put the wall in place as soon as
possible and before the conflict of
interest arises, for example, before
the “tainted” attorney joins the firm,
or before work begins on the new
n Give written notice to all screened
persons and to the firm as a whole
– particularly those working on the
matter – that the screen is in place
and what it entails, including follow-
up reminders that the screen remains
No portion of this article is intended to constitute legal
advice. Be sure to perform independent research and
analysis. Any views expressed are those of the author.