Page 10 - John Hundley 2018

“Screening” Doesn’t Apply to Existing Lawyers

“Screening” is not available to insulate existing members of a law firm from each other’s potential
conflicts of interest, a recently-issued Illinois State Bar Association Advisory Opinion concludes.

In Opinion No. 18-02, the ISBA dealt with a two-partner law firm but its conclusion seems to have
special implications for large firms. In essence, the ISBA concludes that the screening procedures
permitted by Illinois Rule of Professional Conduct 1.10(e) apply only “when a lawyer becomes
associated with a firm”, language not present in the comparable Model Rules of the American Bar
Association.

“[N]otwithstanding the fact that ABA Model Rule 1.10’s screening
provision may apply more broadly to permit screening of attorneys
subsequent to when they are joining the firm, the Illinois screening
provision applies only when a newly associated lawyer is joining the
firm,” the ISBA said. Accordingly, the ISBA concluded, screening is not
available in other circumstances.

“Screening” refers to procedures adopted within a law firm to assure
that documents, information and personnel associated with the firm’s
representation of one client are not shared with personnel representing a conflicting client of the firm,
and vice versa.

ISBA Advisory Opinions are not binding on courts or disciplinary agencies, but they often are
considered by such bodies in assessing lawyer conduct.

“Everybody Does It” No Defense To Disbarment

An “everybody does it” defense has been rejected by the Seventh U.S. Circuit Court of Appeals in
the appeal of a bankruptcy lawyer from a disbarment decision.

In In re Husain, 866 F.3d 832 (7th Cir. 2017), the practitioner was
found to have signed clients’ names to documents that debtors must
verify under penalty of perjury; copied and reused clients’ signatures
so it appeared they had signed documents they had not seen;
applied forged or copied signatures to documents that did not reveal
all of debtors’ assets; submitted documents that omitted material
assets; and lied on the stand.

Responding to the argument that everyone does it, the court said
that that “might mean that more disciplinary proceedings are in
order; it would not exculpate Husain.”

Husain petitioned for review by the U.S. Supreme Court but his petition was denied.

Brenda\Sharp Thinking\#150.pdf
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