Michael S. Cedillo, et al., Avoiding Imputed Disqualification, 8 Southern Journal of Business and Ethics (2016)
By Michael S. Cedillo • Nov 16, 2016 • In Written by: Michael S. Cedillo, Laura Sullivan, Diana Brown
Notwithstanding limited circumstances for previous government attorneys, Texas does not allow screening to circumvent imputed disqualification. To the contrary, an entire law firm is often disqualified from representation because one of its attorneys represented a former client at his or her previous firm that is now adverse – even if the disqualified attorney has no involvement in the actual case. Almost half the states and the American Bar Association Model Rules provide an exception to this harsh rule provided that the disqualified attorney is properly screened from the litigation. The reasoning is sound. The concern that confidential information will be revealed to the former client’s detriment is alleviated by properly screening the otherwise disqualified attorney. Meanwhile, a party is not deprived of its right to be represented by an attorney of its choosing and it allows attorneys mobility with changing jobs. Texas should adopt a similar rule for the same rationale.
Imputed disqualification arises when an entire law firm is disqualified from representation because one of its attorneys has a conflict of interest. To avoid this potential conflict, ethical screening (commonly referred to as a “Chinese Wall”) is often used. Ethical screening is a procedure in which an otherwise disqualified attorney is screened from other attorneys within a firm to prevent the entire firm from being disqualified. A conflict of interest takes multiple forms. The following article focuses on a conflict of interest from an attorneys’ representation of a prior client and examines the law on ethical screening in Texas, other jurisdictions and the American Bar Association (“ABA”) Model Rules’ approach to ethical screening, and why Texas should adopt a similar rule.