In disqualification analysis, courts often scrutinize various aspects of a targeted lawyer’s firm or office.  Ordinarily though not exclusively, courts consider whether to disqualify a firm because one of its lawyer’s conflict of interest is, or arguably should be, imputed to the firm’s other lawyers.  Timely and effective screening, in certain jurisdictions and under certain conditions, can prevent this imputation and (where applicable) mitigate the appearance of impropriety.  This post focuses on three factors generally relevant when courts consider whether screening is likely to be effective in a particular firm: (1) size; (2) physical layout; and (3) hierarchy or structure.

First, many courts consider the size of the law firm.[1] Although no particular size is dispositive, courts generally view larger firms as better environments for effective screens than smaller firms.[2]

Second, and relatedly, courts examine the physical proximity of the disqualified lawyer to the other lawyers in the law firm who are working on the case. The closer the disqualified lawyer’s work area is to those lawyers or the files, the less effective courts will view attempts to screen the disqualified lawyer.[3]

Third, courts will scrutinize the firm’s hierarchy and the lawyer’s position in that hierarchy: if the disqualified lawyer is the managing partner or the chief prosecutor (as opposed to a junior lawyer), the screening is less likely to be effective.[4] Moreover, courts occasionally examine the broader structure of the office (e.g., private, public, non-profit), and whether that structure creates financial or other incentives for lawyers with the firm or organization to share or access the movant’s confidential information.[5]

[1]     See generally Kenneth L. Penegar, The Loss of Innocence: A Brief History of Law Firm Disqualification in the Courts, 8 Geo. J. Legal Ethics 831, 890-92 (1995) (noting the rapid growth of law firms in the 1970s and 1980s and the increased acquisition of lateral attorneys and noting that “[s]uch a process of growth generates additional conflict of interest claims, more than would have occurred had law firm growth occurred principally or only through additions of fresh law school graduates”); Flamm, Lawyer Disqualification §25.6 (2003) (discussing the size of the firm as a factor but not necessarily with respect to screening).

[2]     Norfolk S. Ry. v. Reading Blue Mountain & N. R.R., 397 F. Supp. 2d 551, 554-55 (M.D. Pa. 2005) (concluding that screen was ineffective in part because firm had ten attorneys, qualifying as a small firm); Decora Inc. v. DW Wallcovering, Inc., 899 F. Supp. 132, 141 (S.D.N.Y. 1995) (disqualifying both the lawyer and firm in part because the relatively small size of the firm—forty-four lawyers—and the “close working relationship between Mr. Robinson and those who are working on the case against Mr. Robinson’s former client indicate screening mechanisms cannot be effective in this case.”). Compare Essex Equity Holdings USA, LLC v. Lehman Bros., Inc., 909 N.Y.S.2d 285, 297-98 (N.Y. Sup. Ct. 2010) (citations and footnotes omitted) (granting disqualification on grounds other than size of firm; noting “size was a contributing factor in the decision[s of other courts] to disqualify, but there were aggravating factors which . . . raised ‘grave concerns about both the possibility of unintentional breaches of client confidences and about the appearance of impropriety’. . . . A per se rule against screening for small firms has not been the law heretofore in New York and would be impractical to adopt.”), with Mitchell v. Metro. Life Ins. Co., Inc., No. 01 CIV. 2112 (WHP), 2002 WL 441194, at *9 (S.D.N.Y. Mar. 21, 2002) (noting “[c]ourts have only approved screening procedures in the limited circumstances where a conflicted attorney possesses information unlikely to be material to the current action and has no contact with the department conducting the current litigation, which typically occurs only in the context of a large firm” and listing several cases where the small size of the firm was a factor).

[3]     Stimson Lumber Co. v. Int’l Paper Co., No. CV 10-79-M-DWM-JC, 2011 WL 124303, at *5 (D. Mont. Jan. 14, 2011) (granting disqualification in part because attorney continues to work in the office building and in close proximity to attorneys who may work on the litigation); Hitachi, Ltd. v. Tatung Co., 419 F. Supp. 2d 1158, 1165 (N.D. Cal. 2006) (granting disqualification motion in part because the conflicted attorney works in the same office as the small department handling the litigation); Silicon Graphics, Inc. v. ATI Techs, Inc., 741 F. Supp. 2d 970, 983-84 (W.D. Wis. 2010) (denying motion to disqualify even though the conflicted attorney works in the same practice group as the attorneys working on the litigation because the firm “employs approximately 100 intellectual property lawyers,” the physical files and attorneys working the case are located in Minneapolis, the conflicted attorney works in New York, and the firm’s promise to exclude attorney from contact with the attorneys handling the case); People v. Conner, 34 Cal. 3d 141, 148-49, 666 P.2d 5, 9 (Cal. 1983) (affirming the recusal of “DA’s office from the further prosecution of the case” because the DA was “inextricably involved” in the case and “[h]e disclosed that involvement to a substantial number of his fellow coworkers. Because the felony division of the DA’s office is composed of about 25 attorneys, we have no difficulty in assuming that there is a commendable camaraderie which exists among these officials.”).

[4]     United States v. Pelle, No. CRIM. 05-407JBS, 2007 WL 674723, at *7–8 (D.N.J. Feb. 28, 2007) (denying the request to substitute counsel; noting that the substitution would cause an actual conflict because the attorneys previously represented the confidential informant who will be testifying against the defendant in the same matter, and one of the attorneys is the managing partner in a firm of ten attorneys); Kirk v. First Am. Title Ins. Co., 183 Cal. App. 4th 776, 810–14 (Ct. App. 2010) (citations omitted) (“An additional element favorably acknowledged in caselaw is that the disqualified attorney have no supervisory powers over the attorneys involved in the litigation, and vice-versa.”); People v. Doyle, 406 N.W.2d 893, 899 (Mich. Ct. App. 1987) (“The general rule is that a conflict of interest involving the elected county prosecutor himself requires recusal of the prosecutor and the entire staff. Since assistant prosecutors act on behalf of the elected county prosecutor and are supervised by him, the policies of fairness to the defendant and the avoidance of an appearance of impropriety require this result. When the conflict of interest involves an assistant prosecuting attorney, as in these cases at bar, recusal of the entire prosecutor’s office is not automatic.”); cf. Global Van Lines v. Superior Court, 144 Cal. App. 3d 483, 192 Cal. Rptr. 609 (Ct. App. 1983) (noting that it was not attorney’s “superior knowledge of the industry which requires his disqualification in this case, but his having been Global’s general counsel for 15 years during which he and his subordinates in the office were involved in matters bearing a substantial relationship to issues in the current litigation”); Model Rules of Prof’l Conduct R. 1.9 cmt. 6 (“A lawyer may have general access to files of all clients of a law firm and may regularly participate in discussions of their affairs; it should be inferred that such a lawyer in fact is privy to all information about all the firm’s clients.”).

[5]     Bruce A. Green, Conflicts of Interest in Litigation: The Judicial Role, 65 Fordham L. Rev. 71, 119 & n.178 (1996) (citing State ex rel. Romley v. Superior Court, 908 P.2d 37, 42 (Ariz. Ct. App. 1995); People v. Christian, 48 Cal. Rptr. 2d 867, 875 (Ct. App. 1996)) (“Courts make distinctions, for example, between for-profit law offices and government or other not-for-profit law offices.”).

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