Law Memorandum – Ethical Issue Review and Procedure for Erecting an Ethical Wall
TO: ALL ATTORNEYS
FROM:
SUBJECT: PROFESSIONAL CONDUCT
DATE: 29TH OCTOBER 2021
Ethical Issue Review and Procedure for Erecting an Ethical Wall
Facts
Melissa has been working for the law firm for two months. She previously worked at a competing law firm, representing an opposing party in a matter the law firm is currently working on. In the Maxell, Ltd. v. Apple Inc. case, it was established that an ethical screen needs to be conducted to prevent conflict of interest and avoid disqualification by a court if it establishes that a client’s interests were endangered. Ethical screens are permitted by the ABA Model Rules of Professional Conduct to prevent allegations of conflict of interest where a disqualified attorney has moved to a law firm from a decision-making role or the disqualified attorney is shifting from government practice to private practice or vice versa(Galderma Labs., L.P. v. Actavis Mid Atl. LLC). The NFPA Model Code of Ethics and Professional Responsibility’s Cannon 8 provides that paralegals are required to avoid conflict of interest and should disclose any conflicts to their clients, potential clients, and employers.
Issue(s) Presented
Melissa was hired without conducting a conflict check. The law firm has realized that she may be affected by a conflict of interest because she was a previous employee of a competing law firm representing an opposing party on a case being handled by the law firm she is currently working at.
Answer to Issue
A detailed ethical screening is required to determine whether Melissa should continue working at the law firm or not. This requires isolating her from any participation in the current case involving her former employer. Module Rule 1.0, Terminology on ethical screening, provides that a lawyer or other person with a conflict of interest should be isolated from any participation in a matter through the timely imposition of procedures within a firm that is reasonably adequate under the circumstances to protect information that the isolated lawyer has an obligation to protect under these Rules or other law. It also requires the conflicted lawyer is not given any part of the fee therefrom, each affected client receives written notice enabling the former client to ascertain compliance with the provisions of Module Rule 1.10, and each affected client receives regular certification and upon an affected client’s written request from the firm and conflicted lawyer that the firm and lawyer are complying with the Rules and screening requirements (Selby v. Revlon Consumer Prods.).The firm also needs to erect an ethical wall and ensure that Melissa’s issue is not interpreted as a violation of professional conduct. This can be achieved through two approaches. The first one is ensuring that everyone at the firm understands the rule on conflicts of interest and when an ethical screen may be used. This information can be provided to employees during legal education programs that should be held regularly or other internal training programs. They can also be notified about this rule regularly via email. The second approach is ensuring that there is a written protocol or policy for establishing ethical screens. This can help in verifying that no steps have been skipped, and it can also be used as evidence that the firm has taken its duty seriously and has conducted a thorough evaluation.
Reasoning or Discussion
In Melissa’s case, both Melissa and the hiring department should be blamed for the current issue. Melissa should be blamed for failing to mention that she was a former employee of a competing firm. It can be assumed that she may have left out this information to increase her chances of being hired because the firm could probably not have hired her. The hiring, on the other hand, failed to conduct a thorough background check before hiring Melissa. The main ethical issue is, therefore, a conflict of interest, given the fact that the conflict was not disclosed before Melissa began work on the matter. There is, however, time to reduce the damage that the conflicts of interest could have on the case by isolating Melissa from the case. The law firm also needs to include ethical screening as a requirement in its hiring policies and procedures to prevent such cases from happening in the future. The hiring team should also investigate whether they intentionally ignored information about Melissa’s previous employer or did not know about it until the recent discovery.
Conclusion
It is evident that Melissa’s conflict of interest could affect the ongoing case and the firm in general if it is accused of violating professional conduct. Melissa must, therefore, undergo an ethical screening. The law firm also needs to ensure that Melissa has no access to any documents, files, management software, or correspondence and prohibits any connection she may have to the case. Melissa should also undergo a training program on conflict of interest to enlighten her on her responsibility to prevent it. The law firm needs to practice operational and physical separation in all its departments. Operational and physical separation should be applied to disqualified employees to ensure that they are not connected to the screened material by ensuring the ethical matter is resolved by an employee working in different parts of the practice group. The law firm also needs to minimize communication and collaboration with employees involved in the ethical screen.
References
Maxell, Ltd. v. Apple Inc., 2021 U.S. Dist. LEXIS 56319, 2021 WL 1100098
Selby v. Revlon Consumer Prods., 6 F. Supp. 2d 577, 1997 U.S. Dist. LEXIS 19803
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Question 
You are employed at a large law firm. A new paralegal, Melissa, was hired 2 months ago and has been working on cases during that time. No conflict check was run on Melissa’s previous cases from her old law firm when she was hired. It came to your supervising attorney’s attention that Melissa previously worked at a competing law firm representing an opposing party in a matter you are currently working on. Your supervising attorney has asked you to prepare an interoffice memorandum notifying the rest of the firm’s attorneys about the conflict. You might want to begin your research with the article from this week, “The Ethical Wall,” as well as the ABA Model Rules for Professional Conduct, Rules 1.7-1.13, and their comments as resources for addressing the conflict and the following issues:
Ethical Issue Review and Procedure for Erecting an Ethical Wall
1. The screening process that Melissa should now undergo to ensure there are no other conflicts.
2. The steps necessary to erect an ethical wall for the known conflict.
3. The ethical issues present given the fact that the conflict was not disclosed before she began work on the matter.
https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_7_conflict_of_interest_current_clients/comment_on_rule_1_7/
Format:
Assignments should be formatted as memorandums for the firm’s attorneys in the law firm. At least 3 primary legal sources in your memorandum.
The memo should contain the following sections:
Heading or Caption
Facts
Issue(s) Presented
Answer to Issue
Reasoning or Discussion
Conclusion
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