Screens, Chinese Walls, and Cones of Silence

One major mechanism for managing conflicts of interest with concurrent clients is through the use of screens (also known as “firewalls,” “Chinese walls,” or “cones of silence”). Screens are mechanisms by which lawyers working on one matter are prohibited from certain kinds of communication with lawyers in the same firm working on a conflicting matter. The prohibition is sometimes augmented by placing the lawyers in separate locations (on different floors or in different buildings), controls on e-mail and file access, and the like. Some screens are simply matters of honor; some involve real walls. Screens cannot change a nonconsentable conflict into a consentable one. Instead, screens are used “to encourage clients to consent to a loyalty conflict.”33

Lawry sees screens as further evidence of erosion in lawyers’ conflict of interest standards. Lawyers were introduced to the idea of screens in 1975 by Formal Opinion 342 of the ABA’s Standing Committee on Ethics, which argued that former government lawyers should be permitted to work for a firm doing business with the government if they are screened within the firm from files that they worked on while they were in government. Without such screens, it was argued, “good lawyers would avoid government work, to the detriment of the common good.” This principle, which was developed for government lawyers and which is discussed only in the Model Rules (and comments) in reference to government lawyers, is now routinely extended to private lawyers. Lawry reports that 22 of 51 jurisdictions allow screening without the consent of the former client.34 Screens have also received some recognition in the courts and are endorsed in the restatement of the law governing lawyers as a way of dealing with conflicts created by lawyers switching firms. Reasonable people will likely continue to disagree about whether screens are a sign of eroding legal ethics or evidence that legal practitioners are both committed to legal ethics and capable of creating effective management systems. Nevertheless, the debate shows that lawyers are engaging with the fundamental question of how to balance the risks of conflict of interest in such situations against the benefits of tolerating the conflict if it is properly managed.

ACCOUNTANTS

As in other professions, much work in accounting can be conducted by uncertified (or unlicensed) individuals, but some accounting functions

33

Susan R. Martyn, “Visions of the Eternal Law Firm: The Future of Law Firm Screens,” South Carolina Law Review 1994; 45(1): 937–959.

34

Thomas D. Morgan and Ronald D. Rotunda, Selected Standards on Professional Responsibility, New York: Foundation Press, 2006.



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