B-LAW B-LAW B-LAW: ETHICS FOR BUSINESS LAWYERS ANNUAL REVIEW 2021

Written by Neil J Wertlieb

This edition of B-Law B-Law B-Law highlights certain ethics advisory opinions that were issued during 2021 by the California Lawyers Association’s Ethics Committee ("CLAEC"), the California State Bar’s Committee on Professional Responsibility and Conduct ("COPRAC"), the American Bar Association’s Standing Committee on Ethics and Professional Responsibility ("ABA"), the San Diego County Bar Association’s Legal Ethics Committee ("SDCBA"), and the San Francisco Bar Association’s Legal Ethics Committee ("BASF"), as well as recent changes in the California Rules of Professional Conduct.

ELEMENTS OF EFFECTIVE ETHICAL SCREENS: CLAEC OPINION 2021-01

This opinion addresses the elements of ethical screens that effectively comply with the California Rules of Professional Conduct. California Rules of Professional Conduct rule 1.0.1(k) provides a definition of a screen that, while helpful, does not provide a detailed roadmap for a law firm instituting an ethical screen. Whether a screen is effective at meeting these standards must be determined on a case-by-case basis. But four required elements are (1) timely imposition of the screen, (2) prohibitions of communications across the screen, (3) no fee-sharing with prohibited persons, and (4) notice to affected clients. Other factors that may be considered when evaluating the efficacy of a screen include the physical and operational separation of those on each side of the screen, limitation of prohibited individuals’ access to the screened matter’s file, the communication employed within the firm regarding its terms, negative internal consequences for violations of the terms, and the monitoring of the screen. This opinion does not consider the circumstances under which conflicts may be addressed through an ethical screen where a waiver is obtained.