Peer to Peer Magazine

the quarterly magazine of ILTA 61 Peer to Peer Avoiding Risk in Lateral Transfers: Lessons Learned been overlooked, and the gatekeeper offers a fresh set of eyes. If a name appears on the authorized client transfer list, but the conflict report shows that client as an adverse party of the new firm, this creates a potential conflict situation. The gatekeeper must discern, then, if either the conflict was cleared or both parties executed a waiver. If they have, it may result in building an ethical wall, but the transfer can move forward. Without this additional check, however, any transfer of information –– metadata, physical or electronic documents (including e-mail) –– might allow information into the firm's information systems that could be a breach of ethics. need Is not Greed At my first meeting with the new partners, some made it clear that they needed assurance that every file they ever worked on would come with them. On the surface this argument sounded logical. After all, their firm was dissolved, and the future of the physical files was perilous. But does this make sense from a risk and ethics standpoint? In a normal transfer, closed matters should remain in the custody of the old firm where their retention schedule will determine the disposition of the content. In our case, there was no firm to keep the closed matters, and some of the attorneys were concerned that they just might need something, someday. The issues were clear. On the one hand, if we brought content into our firm that represented matters on which we had never been engaged, there could be a potential breach of confidentiality. On the other hand, even if the client authorized the transfer, it is not impossible to imagine that someday the firm could face a malpractice lawsuit on matters that the attorney was engaged in at his or her former firm. If you face this issue, you would be advised to speak with your professional liability insurer about prior acts coverage. The issue amped up when, eight months into the transfer, the bankruptcy court declared that physical files belonging to matters that had not been duly authorized by the client for transfer were subject to destruction. When the clients received this notice, in a few cases, they asked our laterals to take custody of the files as the "attorney of record." This became an issue, then, for our risk management committee to resolve. They decided that they would approve the transfer in order to engender future client relationships, but they stipulated that ethical walls must be constructed around the content until such time as that relationship emerged. In essence, they became personal files for the attorneys and their responsibility. Integration with Integrity Both firms knew that a transfer of this magnitude would take several months to complete, yet the office administrator at the dissolving firm was anxious for all the physical files to be removed in case the bank took them hostage. They asked if we could send people over to assist. Nine secretaries and paralegals "To make the new lateral onboard experience a success, there are many moving parts, disparate processes and invested roles that must conflate."

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