Pennsylvania Bar Association - Lawyer Mobility and Ethical Screens: What You Need to Know

Hope A. Comisky
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The Problem

A lawyer moves from a firm doing defense work to one handling plaintiff’s personal injury claims. Almost three years pass without incident. He then files a complaint for a new client against a former client.

Given the passage of time, the lawyer believes that no conflict problem exists. But it does. The lawyer does not notify the former client of the situation and never asks for a conflict waiver. The former client learns of the situation when it receives the complaint. The former client immediately files a motion to disqualify the lawyer and his firm. What went wrong?

The Facts

These were the facts addressed by the Pennsylvania Superior Court in the recent case, Darrow v. PPL Elec. Utils. Corp., 266 A.3d 1105 (PA Super 2021). Plaintiff Darrow was injured in an accident when his car hit a utility pole and contacted a downed power line. He hired an attorney from a plaintiff’s personal injury firm to represent him in a personal injury suit against PPL Electric Utilities Corp. (“PPL”). The firm had approximately 10 attorneys who concentrated on personal injury claims. The plaintiff’s attorney had worked at the plaintiff’s personal injury firm for about three years prior to filing suit on behalf of Darrow. Before joining the firm, the plaintiff’s attorney had worked for 18 years for a defense firm. The plaintiff’s attorney’s prior practice included representing PPL in numerous personal injury lawsuits. PPL filed a motion to disqualify the plaintiff’s attorney and his firm based on the plaintiff’s attorney’s violation of Pennsylvania Rules of Professional Conduct 1.9 and 1.10.

Applicable Rules of Professional Conduct

Rule 1.6(c)(7) on Confidentiality of Information contains a specific provision allowing disclosure of client information “to detect and resolve conflicts of interest from the lawyer’s change of employment . . . only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.”

Rule 1.9(a) on Duties to Former Clients states:

“A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent.”

Comment [7] further explains that matters are substantially related for purposes of the Rule “if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.” The comment does state that “information acquired in a prior representation may have been rendered obsolete by the passage of time . . .”

Rule 1.10(b) on Imputation of Conflicts of Interest states:

“(b) When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which the lawyer, or a firm with which the lawyer was associated, had previously represented a client who interests are materially adverse to that person and about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter unless:

(1)   the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2)   written notice is promptly given to the appropriate client to enable it to ascertain compliance with the provisions of this rule.”

Trial Court Decision to Disqualify Only the Attorney, Not the Firm

The plaintiff’s attorney admitted that he represented PPL in as many as 40 or 50 cases, and that some matters involved downed wires from damaged utility poles; even so, he argued that those cases did not trigger a conflict because they did not involve the particular pole at issue in the current matter. The trial court rejected that fact as “immaterial.” Darrow, 266 A.3d at 1108. The plaintiff’s attorney also admitted that he had gained knowledge from his representation of PPL that was relevant to the defense of PPL casualty cases. Id. at 1109. He further stated that he was not screened from the new matter. Based on these undisputed facts, the plaintiff’s attorney was disqualified. He did not appeal that ruling.

The trial court, however, conducted a separate evidentiary hearing subsequent to the plaintiff’s attorney’s disqualification with respect to the motion to disqualify the firm. The trial court denied that motion. The plaintiff’s attorney stated that he never saw a written screening protocol and never signed a written screen before he filed the complaint in the action and was disqualified from the case. Id. at 1110. Yet, the trial court credited the plaintiff’s attorney’s testimony that he did not communicate any confidential information to anyone at the firm. Id. at 1113. The trial court also found that the “screening process [wa]s adequate.” Id. The evidence admitted during the hearing established that the firm erected a screen following the order disqualifying the plaintiff’s attorney long after the case had commenced. Id. at 1110. The screen had the following elements. It: 

  • Precluded the plaintiff’s attorney’s access to office case files data, or information in the matter.
  • Placed physical case files in a locked office. • Instructed staff not to discuss the case with the plaintiff’s attorney.
  • Told staff they were subject to disciplinary action if they violated the screen.
  • Blocked the plaintiff’s attorney from receiving any fees in the case.

Id. Although there was testimony that the screen was put in writing, there was no written documentation of the screen or signed acknowledgements of the screening protocol that were admitted into evidence. Id. PPL appealed that decision. 

Superior Court Decision Disqualifying the Firm

The Superior Court stated that there was “no precedential Pennsylvania authority with a controlling analysis for the adequacy of a law firm’s conflict protocol under Rule 1.10(b).” Id. at 1111. The Court looked to the factors identified by the court in Dworkin v. General Motors Corp., 906 F. Supp. 273 (E.D. Pa. 1995) as “valuable and appropriate” in deciding the disqualification issue. Id. at 1112. It went on to analyze each of the factors cited in Dworkin.

First, the Superior Court found that the substantiality of the relationship weighed in favor of disqualification, given the numerous personal injury suits that the plaintiff’s attorney handled for PPL over more than 10 years. and his access to confidential information. Id. at 1113-14. Second, the 3-4 year lapse between the last representation of PPL and the plaintiff was the only factor that did not weigh in favor of disqualification. Id. Third, the size of the firm  — 10 attorneys — weighed in favor of disqualification; there is more contact between attorneys in small firms, so the small firm size was a “detriment.” Id. at 1114. Fourth, the significant nature of the plaintiff’s attorney’s involvement, where he was lead counsel filing the action, propounding the discovery, communicating with opposing counsel, consulting with an expert and visiting the accident scene with an expert, weighed in favor of disqualification. Id. Fifth, the timing of the wall weighed heavily in favor of disqualification. There was no screening in place for over two years when the plaintiff’s attorney performed multiple functions. Id. Finally, the features of the wall were inadequate and weighed in favor of disqualification. In addition, the former client never received written notice, as the Rule required. Id. at 1115.

Given that the factors weighed heavily in favor of disqualification, the Superior Court reversed the trial court and remanded the case for the entry of an order disqualifying the firm. Id.

Lessons Learned

First, in connection with onboarding the plaintiff’s attorney, the firm should have run a thorough conflicts check on the matters he was handling (or had handled in the past) but was not bringing to the firm. That check would have included PPL.

The former representation of PPL would have appeared on the conflicts check for the new engagement, and the conflict would have been identified at that time. Then, the plaintiff’s attorney could have been screened before the firm began work for Mr. Darrow, adverse to PPL.

Second, the written screen could have been implemented at the inception of the engagement and could have complied with the provisions of the applicable screening rule and the key elements noted by the court:

  • Prohibition of discussion of sensitive matters;
  • Restricted circulation of sensitive documents;
  • Restricted access to files;
  • A strong firm policy against breach, including sanctions and physical and/or geographical separation;
  • Removal of the affected lawyer from being apportioned any part of the fee from the engagement; and
  • Prompt written notice to the former client to enable it to ascertain compliance with the Rule.

Based on Darrow the decision, circulation of the written screening document to and written acknowledgement of the screen by the screened lawyer and those working on the matter adverse to the former client would have helped evidence compliance with the Rule and those key elements. Periodic monitoring also would have been extremely helpful in establishing that the screen has been effectively implemented.   

The dissent in Darrow was concerned that disqualification would effectively deny Mr. Darrow of counsel of his own choosing and result in further delay of the case. On a broader scale, the dissent prophesized that frequent lateral moves will result in the filing of regular disqualification motions relying on the majority opinion. The antidote to that forecast is straightforward:  engage in robust conflicts checking of lateral attorneys and implementing strong screening protocols.  These actions can save firms time and expense associated with defending disqualification motions and secure a client’s counsel of choice.  

Reproduced courtesy of the Civil Litigation Section, Volume 25, No. 2 of the Pennsylvania Bar Association.