California Lawyers Association Ethics Committee Issues Formal Opinion on Ethical Screens

The Opinion addresses the elements of ethical screens that effectively comply with the Rules of Professional Conduct.

March 17, 2021 11:00 AM EDT

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SACRAMENTO, Calif., March 17, 2021 /PRNewswire/ -- The California Lawyers Association (CLA) Ethics Committee has issued its first formal ethics opinion, Formal Opinion 2021-1, addressing Ethical Screens. The opinion promises to be a vital resource for any law firm wishing to minimize the risk of conflicts. Several Rules of Professional Conduct expressly provide for implementation of a screen without client consent to rebut the presumption of shared confidences, and CLA's opinion clarifies and expounds on those Rules, including 1.0.1(k) (which provides a definition of the term "screened").

The opinion addresses the elements an ethical screen must have in circumstances where such a screen is expressly required by the Rules. Importantly, the opinion notes that there may be a distinction between what is ethically required to comply with professional obligations and what a court may view as necessary to avoid disqualification, which sometimes may be granted without a violation. 

The most critical ethical screen factors are those expressly set forth in the Rules. The screen must be implemented in a timely manner, and include preventative measures to protect against the confidential information of the former or potential client from being shared with others in the firm. There should be no communications related to any matter being protected in either direction across the screen. The lawyers whose conflict results in them being screened off should not receive any portion of the fees from the matters they are screened from. And the affected clients must receive notice of the fact of the screen and its terms so they have an opportunity to comment about them. Additional factors may help the efficacy of the screen in preventing the sharing of confidential information, but whether they should be implemented largely depends on the circumstances.

Any ethical screen must ultimately be judged by whether it is sufficient to meet its purpose, to satisfy concerns that a prohibited attorney has not and will not have any involvement with, or communication concerning, the screened matter that would support a reasonable inference that confidential information was or will be disclosed.

CLA's CEO and Executive Director Ona Alston Dosunmu lauded the Committee's first opinion. "This important opinion demonstrates our commitment to provide analysis and thought leadership to support the ethical practice of law. CLA will continue to provide its members and the legal community with guidance and resources to promote excellence in the practice of law," Dosunmu said.

About CLA's Ethics Committee:The Ethics Committee provides feedback and comment on proposed opinions, rules and legislation impacting attorney ethics and professionalism; writes advisory opinions on ethical issues where guidance is needed; develops educational content on ethics issues impacting the entire profession; acts as a resource to Sections and the CYLA who provide practice area-specific ethics content; and works closely with both internal and external ethics groups, including COPRAC and county bar associations.

For information on applying to join the Ethics Committee or to suggest topics for advisory opinions, contact us at ethics@calawyers.org.

About California Lawyers Association:Established in 2018, CLA is the bar association for all California attorneys. CLA's mission is to promote excellence, diversity and inclusion in the legal profession and fairness in the administration of justice and the rule of law.

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SOURCE California Lawyers Association



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