When Should a Law Firm Screen a Lawyer ?
In Chinese Auto. Distribs. of Am. LLC v. Bricklin [SD NY 2009], a firm waited three months before establishing an "ethical wall." the court found,
"The delay was too long. 'To prevent one lawyer's conflicts from being imputed to his firm, the firm must immediately, and effectively, screen that lawyer from any contact with any relevant cases, such that there can be ... "no doubts as to the sufficiency of these preventive measures." ' Panebianco v. First Unum Life Ins. Co., No. 04 Civ. 9331(JSR);
The 'screening measures must have been established from the first moment the conflicted attorney transferred to the firm or, at a minimum, when the firm received actual notice of the conflict.
Mitchell v. Metropolitan Life Ins. Co., Inc (S.D.N.Y. Mar.21, 2002);
Papanicolaou v. Chase Manhattan Bank, N.A., 720 F.Supp. 1080, 1087 (S.D.N.Y. 1989) ('This Court doubts whether any Chinese walls, which are meant to be preemptive, can ever function effectively when erected in response to a motion, and not prior to the arising of the conflict.');
Marshall v. State of New York Div. of State Police, 952 F.Supp. 103, 111 (N.D.N.Y. 1997) ('... a screening device implemented only after a disqualified lawyer has been with a firm will not provide adequate protection of confidences.');
Restatement (Third) of the Law Governing Lawyers 124 cmt. d(i) (2000) ('The required screening measures must be imposed in the subsequent representation at the time the conflict is discovered or reasonably should have been discovered ... .')."
Along the same lines, Comment 10 to rule 1.0 (t) (defining "screening") provides, "In order to be effective, screening measures must be implemented as soon as practicable after a lawyer or law firm knows or reasonably should know that there is a need for screening."