Peer to Peer Magazine

www.iltanet.org 38 Peer to Peer I s your firm properly handling its information management obligations when lawyers join or leave the organization? It's no secret that most firms have seen personnel changes in recent years, most notably in response to the economic downturn. In this context, industry trends, including new rules of professional responsibility, case law and government regulations, underscore the growing importance of diligently addressing confidentiality requirements tied to personnel movement. Firm risk and IT teams have critical roles to play in preparing and protecting their organizations when there are lateral hires or lawyer departures. Open the Door, close the Screen Today, lawyer mobility is a fact of life and a common occurrence. But lateral hires often create conflicts of interest that must be resolved. In many instances, firms can address these conflicts by setting up ethical screens. In some of those situations, clients or former clients must consent and sign waivers. However, in an increasing number of U.S. jurisdictions, consent isn't necessarily required so long as ethical screens are employed. Whenever a firm relies on an ethical screen to address a conflict stemming from a lateral hire, it's vitally important that the organization be prepared to withstand a disqualification motion from opposing counsel. Successful screening defense hinges on the ability to demonstrate adequate internal policies coupled with timely and effective confidentiality controls. These controls must restrict the ability of affected parties to access relevant information internally. the Evolution of Screens Originally, ethical screens were primarily "policy-only" instruments. To satisfy their professional obligations, firms distributed memoranda and relied on the personal diligence of individuals to avoid inappropriate communication or information-sharing with designated parties. As a further check, organizations also might have restricted access to physical files by attaching "red dot" stickers to prevent accidental disclosure. Today, the pervasive use of technology renders such approaches obsolete. Most information is created and stored electronically, and new search tools surface vast quantities of client and firm information for any interested attorney or staff member. In response, industry standards for confidentiality have changed. Policy-only or manual security-enforcement processes have been replaced with automated notification, enforcement and reporting. These changes were driven partially by clients, who insisted on documented, auditable screening procedures before granting waivers. They've also been shaped significantly by the legal community itself, through changing jurisdictional rules of professional conduct and a growing body of more stringent and explicit case law. Substandard Screening Sabotages Success Consider recent examples of faulty screening. In 2009, an AmLaw 200 firm was disqualified, not for failing to screen a conflicted lateral hire, but for failing to set up the screen in a timely manner. In this ruling, the judge cited delay as the deciding factor invalidating the screen, and highlighted case law setting out the need for screens to be demonstrably effective "such that there can be no doubts as to the sufficiency of these preventive measures." In another 2009 decision, a judge affirmed a screen and denied a disqualification motion, but instructed counsel to implement extra protections by extending security controls to the firm's time entry application and regularly circulating internal reminders regarding the screen. Screening Standards are Strict These stories illustrate an important lesson — appearances matter. Firms face potential disqualification if screens are not timely, access controls are insufficient or internal notification measures are deficient. For a screen to be invalidated, no evidence of actual disclosure is required. If it is possible for an individual to access or be presented with restricted information, even by accident, that "A key issue firms need to consider is what forms, files and client data are moving out the door along with departing lawyers."

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