Upcoming Changes to ER 1.10: One Step Forward, One Step Back?

This is an excellent time to brush up on Arizona's conflicts-of-interest ethical rules, especially if you're thinking about changing law firms. Because effective January 1, 2016, ER 1.10 will be far different from the ER 1.10 that exists today.

Here's why: On one hand, the Arizona Supreme Court has expanded the circumstances under which a lawyer who joins a law firm can be screened and not impute her conflicts to her new firm. On the other hand, the Arizona  Supreme Court has restricted the circumstances under which a lawyer who joins a law firm can be screened and not impute her conflicts to her new firm.

You read that right. It's kind of one step forward and one step backward on what we call "lateral screening."

To understand where we're going, it's important to understand where we've been and where we are now.

Let's assume you think opposing counsel would be an awesome addition to your law firm. She agrees to leave her firm (and leave her client at that firm) and join your firm. Let's call her Opposing Counsel, her former firm Former Firm, and her former client Former Client.

If this happened before December 1, 2003, no one at your firm could continue to work on the same or substantially related matter for your client, unless Opposing Counsel's Former Client gave informed consent. (And, let's be frank, chances are that's not going to happen.) You would have to choose between keeping your client but not taking on Opposing Counsel versus adding Opposing Counsel to your stable but jettisoning your client. That's because Opposing Counsel's mere presence would infect all lawyers in your firm.

Beginning December 1, 2003, Arizona adopted lateral screening. Under our version of  lateral screening:

•  If Opposing Counsel had been handling a non-litigation matter for Former Client, Opposing Counsel could leave Former Client at Former Firm and join your firm, even though you represent the opposing party. Opposing Counsel might have been negotiating a multi-million-dollar land transaction for Former Client, and she could still join your firm, which would continue to represent the party who had sat on the other side of the negotiating table from Opposing Counsel . Your Firm would screen Opposing Counsel from having anything to do with your client, but otherwise your firm would keep representing your client and you add Opposing Counsel to your stable.

• On the other hand, if Opposing Counsel had been handling "a proceeding before a tribunal" -- any proceeding before a tribunal -- in which she had a "substantial role," she couldn't join your firm unless your firm withdrew from representing your client, because her mere presence would infect all lawyers in your firm.

ER 1.10 will change again effective January 1, 2016. Under the 2016 change, if Opposing Counsel had "primary responsibility" for the matter -- regardless whether the matter involved the multi-million-dollar land transaction or small litigation -- Opposing Counsel could not join your firm and be screened.

This means that if Opposing Counsel had primary responsibility for the matter -- any kind of matter -- she couldn't join your firm unless you jettisoned your client. Her mere presence would infect the lawyers in your firm with her conflict.

So what do I mean when I say that we've taken one step forward and one step backward on lateral screening? We've taken one step forward by eliminating the litigation exception that we've had for 15 years. That's good; having a double standard for litigators never made much sense to me. On the other hand, we've taken one step backward by putting restrictions on the non-litigation exception we've had for 15 years. That's awkward.

Like I said, this is a good time to bone up on the conflict-of-interest rules.

The State Bar of Arizona will present one of its signature CLE programs on Friday, Nov. 6, 2015: "The 10 Deadly Sins of Conflict." If you're reading this in time, you could attend in person. Here's a link to the information. If you're not reading this in time or your idea of Friday fun does not in include attending a CLE seminar in person, you can buy it as a webinar.