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April 30, 2015


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Scott Boone

If we are looking at the ethical side of it, as opposed to the disqualification side, then this would seem to fall under the prospective client rules (1.18). The conflict standard is the same, but, at least under the ABA Model Rules, screening is a possible solution to a conflict. Of course, the standards to meet to make screening available may not have been met ("reasonable measures to avoid exposure" and "timely screened").

That is just looking at it from an ethical point of view under the ABA rules. Whatever state's rules apply may not include the screening provision, though Utah's rules do adopt ABA Model Rule 1.18 pretty much word for word.

Disqualification is, of course, a slightly different beast. I do not know off the top of my head whether any courts have explicitly made a distinction between a client (present or former) and a prospective client for purposes of disqualification.

Bernie Burk

Scott: A good point. You're right that ABA Model Rule 1.18 allows confidences imparted by a prospective client to be screened, at least for the purpose of avoiding professional discipline, and also right that authority about whether screening will be permitted in this context to avoid disqualification (rather than discipline) is sparse. I didn't mention it because I assumed that the Boies firm would have raised the issue in their public statements if they intended to rely on it. Their position seems to be staked elsewhere. But thanks for the friendly amendment, and for proving once again that nothing beats a subtle conflicts issue.



This is a great post; certainly no need for the apologies about the intricacies of legal ethics.


Apologies, but what are the "intricacies" in this fact pattern.

Firm received confidential information from D.

Firm now wishes to represent D's adversary with respect to the same subject matter (albeit in a different, but related proceeding in which the information provided by D might be useful).

It isn't clear the reasons and pursuant to what understandings D provided the information to Firm.

Is this a really, really subtle, unusual and difficult issue?

I'm sorry. I agree there is an issue here. Perhaps even a serious issue, worthy of discussion and dissection. But, can we elevate this one to the level of unusually perplexing complexity?

Or, is it just because the "big boys" are involved?

Orin Kerr

Great post.


The judge who struck the allegations against Prince Andrew and Dershowitz did so on his own motion and made a point of saying that it was not a response to Dershowitz's motion. He was explicit in denying Dershowitz a procedural 'victory'. Further he stated that the allegations could be brought up later. Do not believe all of Dershowitz's headline grabing claims. What are the ethical implications of an attorney publicly lying about a decision of a court?

In the plea bargain deal subject such as the present lawsuit, what are the ethical implications for an attorney devising a no prosecution arrangement for not only his client [Epstein], witnesses [e.g., Prince Andrew], and himself [Dershowitz]?

There is indeed a lot to chew on for an ethics nerd.


There is a version of this story I remember from the past.

Very slick and large Dublin firm is approached by managers of a major company for advice regarding the possibility that they had engaged in certain activities including ones that could be considered insider trading. Lawyers hear the managers through, then inform them that as a matter of fact they work for their employer, not the managers and cannot represent them. Large firm then is counsel for corporation in subsequent law suit. Large firm is astonished when they are disqualified by the court - but no one is disbarred.

Sometime back in the 90s if I recall correctly.


The relationship between disqualification and the ethics rules is made explicit under MR 1.18(c) in that screening is tied to whether the lawyer who obtained confidential information from the prospective client is disqualified. Presumably, the rules are referring to the Law Governing Lawyers here in determining the standards for disqualification. Another wrinkle: MR 1.18(d)(2) allows screening only if the lawyer who received disqualifying information "took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client." In other words, the lawyer at BSF who engaged in the communications with Dershowitz needed to take affirmative steps to limit disclosure of confidential information. A key question, therefore, will be whether the lawyers at BSF warned Dershowitz to tell them nothing more than was necessary to determine if there was a conflict of interest. Failure to do so will probably prevent screening.

Scott Boone

Yep, EthicsProf lays it out in a more straight-forward way as to why it seems unlikely screening would be an option under 1.18.

Great example, Bernie. I'm going to steal it for my PR class next fall.

Bernie Burk

Actually, I read the Model Rules somewhat differently from EthicsProf. "Disqualified" is a term that is used elsewhere in the Rules as well, not apparently with any intention to prescribe the standards for civil disqualification, but rather as a shorthand describing a lawyer who is forbidden to undertake an engagement ("shall not represent") on account of a conflict of interest. See, e.g., Rule 1.10(a). Many jurisdictions rely on their Rules of Professional Conduct to inform civil standards for malpractice liability and disqualification, but the use of the term "disqualified" implies no discernible pretention on the part of the Rules to prescribe civil standards.



Interesting point -- you are probably right that there are some lawyers who, having obtained disqualifying information under MR 1.18(c), will themselves decide that they cannot represent the client whose interests are materially adverse to a prospective client, in which case the only relevant law will be the ethics rules. But in the vast majority of cases, I suspect, this scenario will arise in the context of a disqualification motion, in which case the LGL will apply.

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