The Inquirer is a sole practitioner with a domestic relations practice. The Inquirer has asked about the ethics of taking on A as his law partner. Inquirer's concerns stem from A's current role as a domestic relations master. In this quasi-judicial role, A makes recommendations and drafts proposed judicial orders for the judge's signature in support and custody matters. Inquirer has asked for an opinion about the following:
1) If A becomes his law partner, can his firm represent a domestic relations litigant in a case in which A had earlier issued a proposed order?
2) Is it possible to place a screening mechanism around A in a two person law firm?
The Committee has concluded that A may not participate in cases in which A was involved as a special master unless all the parties to the proceeding give their informed consent. This consent provision does not apply to the Inquirer however. Rather, the Inquirer could undertake representation as long as he gave prompt written notice to the court, and provided that his office had procedures in place to screen A from any participation in the matter. It was the view of a majority of the Committee that even a two lawyer firm could establish an effective screen. A would be precluded from sharing in any fee generated by the Inquirer's representation.
This situation is controlled by Rule of Professional Conduct 1.12, which governs the conduct of a former judge, adjudicative officer, arbitrator or law clerk. The comment to Rule 1.12, makes clear that the term "adjudicative officer" includes lawyers who serve as "special masters." Under Rule 1.12 (a), a lawyer is disqualified from any matter in which he participated personally and substantially. This disqualification may be avoided, however, if all parties to the proceeding consent after disclosure of the lawyer's previous participation. Accordingly, A, as a former domestic relations master, would ordinarily be disqualified from representing a party in any case in which he had personally and substantially participated. The only exception to this blanket disqualification of A would be if all parties gave their informed consent to his participation.
While the Inquirer, as A's law partner, is also subject to the provisions of Rule 1.12, Rule 1.12 is somewhat more liberal as to him. Under Rule 1.12(c), the Inquirer could undertake or continue representation even in a matter in which A is disqualified because of his former participation as a master, if three conditions are met. First, A must be screened from any participation in the matter. Second, A may not be apportioned any part of the fee from the matter. Third, the Inquirer must give prompt written notice of his representation, and A's former role as a master, to the appropriate court. The purpose of this notice requirement is to allow the court or other tribunal to monitor the firm's compliance with Rule 1.12.
In assessing the Inquirer's compliance with Rule 1.12, the court has the authority to review the effectiveness of his law firm's screening procedures. An effective screen should include a mechanism to physically separate and restrict A from access to file from which A is disqualified. See generally, Dworkin v. General Motors, 906 F. Supp. 273 (E.D. Pa. 1995).
The screening of restricted files may be accomplished by placing the files in a locked area to which A does not have access. Restricted files should not be left in open conference rooms or offices. Indeed, the law firm may require that A not even enter an office or conference room unless A first determines that the restricted files have been removed.
Other screening measures may include a policy that prohibits circulation of the screened files, and that requires the files be returned to the locked file area rather than left in an unlocked office or conference room. Such a policy might also require the locked file area to have a log that must be signed and dated by anyone removing or returning one of the screened files.
A should also not have access to any computer or computer network information concerning the screened files.
Finally, all law firm employees must be informed of the screening procedures and of their obligation not to discuss the restricted files in A's presence. The law firm must further adopt a policy for the discipline of any employee found to have violated the screening procedures.