In many disqualification cases, courts examine various characteristics of the lawyer’s firm.[1] Courts do so because often the dispute centers not on the disqualified lawyer—but on whether other (or all) lawyers within the lawyer’s firm or organization should also be disqualified from the representation.[2] This inquiry frequently analyzes the effectiveness of the firm’s screening mechanisms, or in other words, how well the firm isolates the disqualified lawyer from the case.[3] Courts have concluded that the following factors might impact the effectiveness of the screen, including the firm’s: (1) size; (2) physical layout; (3) hierarchy or structure; (4) knowledge (of confidential information); and (5) screening mechanisms, including their timeliness, strength, and notice.[4]

[1]     See, e.g., Richard Flamm, Lawyer Disqualification: Conflicts of Interest and Other Bases 16 n.6 (2003) (“The proliferation of [disqualification] motions may be explained, in part, by . . . the changing nature of the manner in which legal services are delivered. . . . Certainly, the advent of law firms employing hundreds of lawyers engaging in a plethora of specialties contrasts starkly with the former preponderance of single practitioners and small firms engaging in only a few . . . . In addition, lawyers seem to be moving more freely from one association to another, and law firm mergers have become commonplace. At the same time that the potential for conflicts of interests has increased as the result of these phenomena, the availability of competent legal specialties has been concentrated under fewer roofs. Consequently, these new realities must be at the core of the balancing of interests necessarily undertaken when courts consider motions for vicarious disqualification . . . .” (quoting Manning v. Waring, Cox, James, Sklar & Allen, 849 F.2d 222, 224-225 (6th Cir. 1988))).

[2]     [S]ome courts will also consider the prejudice to the lawyer’s firm were they to disqualify it. See [here].

[3]     “Screening is the process through which a lawyer who is directly prohibited from a representation is separated from other lawyers in his or her firm so that the firm can attempt to avoid imputed disqualification. An effective screen will prevent other lawyers in the firm from learning client confidences held by the quarantined lawyer.” ABA/BNA Lawyers’ Manual on Prof’l Conduct § 51:2012; Model Rules R. 1.0(k). Older labels for the screening process include “ethics wall” and “cone of silence.” ABA/BNA Lawyers’ Manual on Prof’l Conduct § 51:2012.

[4]     See, e.g., Cromley v. Bd. of Educ. of Lockport Twp. High Sch. Dist. 205, 17 F.3d 1059, 1065-66 (7th Cir. 1994) (noting and applying most of these factors).

[Source: Keith Swisher, The Practice and Theory of Lawyer Disqualification, 27 Geo. J. Legal Ethics 71 (2014) (Part I.B.4).]