As associate lawyers move more frequently between firms, their arrival can spark exciting growth but might also present potential conflicts of interest for a new employer. Conflicts may arise from an associate’s prior legal work, which can be imputed to the new firm. In such cases, the new firm must implement an effective ethical screen or “wall” to exclude the associate from involvement in the matter.
Hiring firms and associates in this situation should review ORPC 1.10(c), which permits the use of an ethical wall when a conflict with a former client could be imputed to a firm. For more details, refer to OSB Deputy General Counsel Nik Chourey’s article, “Imputation and Screening to Avoid Disqualifying Conflicts” in the June 2024 Oregon State Bar Bulletin. In this blog post, we’ll assume a conflict exists and the affected clients have been properly notified. The next step is for the firm to implement internal safeguards to prevent the new associate from accessing any information related to the case.
When setting up the screen, the firm may encounter a logistical challenge. Case information is often stored across multiple platforms—email, paper files, electronic documents, and practice management software. The sheer volume of information can make it difficult to establish a consistent and effective ethical wall. To improve the screening process, firms should develop clear, detailed procedures for managing each type of storage.
Below are some guidelines to help you establish your ethical wall.
1. Inform all personnel in writing.
The first step in any screening procedure is to inform all personnel, in writing, of the conflicted client or matter and the requirements to ensure the associate’s isolation. The notice should explicitly instruct all staff to exclude the associate from any conversations, meetings, and any other communications related to the case. These restrictions also apply to digital collaboration platforms like Teams or Slack, if used for case discussions.
2. Restrict access to the case file.
Another essential safeguard is to prevent the affected associate from accessing the case file. For paper files, place a conspicuous, written warning on the file and store it separately, in a secure location, away from other files.
Restricting access to digital files may require software-specific safeguards. For example, in Dropbox, an administrator can limit file access to employees who have permission (see instructions, linked here). Most document management systems include similar access control features. If your firm doesn’t use such software, a simple solution is to password-protect the case file (instructions linked here) and share the password only with those authorized to work on the case. Be sure to store the password securely as well—you don’t want to be locked out of your own files!
3. Note the conflict in your case or practice management system.
Beyond securing files, it’s crucial to include conflict information and access restrictions within your case or practice management system, if you have one. Because this software is generally used firm-wide, managing selective access can be challenging. Some platforms, like Rocket Matter, offer an “Ethical Wall” feature that blocks specific users from certain cases. If your software lacks this feature, consider adding a custom field to note conflicts (e.g., “Conflict of Interest: Monica Logan”). This documentation reminds all staff accessing the file that certain employees are excluded from the case.
4. Conduct a final review and maintain the wall.
Once restrictions are in place, it’s important to conduct a final review to ensure all potential exposure points are properly blocked. Consider different scenarios where the system might fail. For instance, if the incoming lawyer is a partner and your firm typically requires partners to review invoices, there may be additional steps. You will need to make sure a walled-off partner is excluded from reviewing invoices for any case in which a conflict exists—the invoices should be routed only to partners who are permitted access to the file.
Also, setting up a wall is only the first step. Maintaining it requires ongoing diligence. Regular reminders about the ethical screen will ensure that everyone in the firm stays mindful of the restrictions. One strategy is to discuss active screens during monthly office meetings, reinforcing the importance of keeping walls intact. Another strategy is to schedule regular email notices of ethical walls in place. Taking a proactive approach helps avoid confusion and encourages staff to work together to comply with your ethical obligations and protect your clients’ interests.
If you’re unsure how to tailor these safeguards to your firm, consider consulting with a practice management attorney for further guidance.
By instituting clear screening procedures, firms can establish effective ethical walls and smooth the process of onboarding new team members while keeping client secrets safe. In the end, it’s a win-win that keeps the firm growing, builds client trust, and gives conflicts of interest the classic retort of “talk to the hand” … or “the wall.”
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