The issue analyzed in this memo is whether or not to automatically disqualify the plaintiff’s entire law firm because one of its presently employed attorneys formerly represented the defendant in a substantially related matter.
The facts of this case are, in summary, that attorney Jergens changed her employment. In her previous job, she represented Reston Health. At her current job, her employer, NCHC, has just sued Reston Health.
Counsel for Reston Health has moved to disqualify NCHC because Jergens has an ethical conflict.
II. THE RULE OF LAW
The policy of the law is to protect the clients expectation of confidentiality, otherwise a person cannot fully and freely confer and confide in the attorney.
The court implements this policy by looking at:
1. Did the attorney acquire confidential information about a substantially related matter? 2. Is the presumption that the attorney will share this information with the present employer rebuttable or irrebuttable?
The old rule, still in effect in many jurisdictions, is that there is an irrebuttable presmumption that the lawyer WILL share the confidential information with her present employer, therefore the entire law firm must be disqualified.
The modern trend is that this presumption is rebuttable by proper screening.
III. ANALYSIS
A. Did Attorney Jergens acquire confidential information from Reston Health, about a substantially related matter?
Give the rule on what constitutes a substantially related matter. Discuss Jergens relationship with Reston Health when she was their attorney at her previous job. Show that she would have acquired confidential information on substantially related matters.
B. Is the presumption that Jergens will share the confidential information with her new employer rebuttable or irrebuttable?
Discuss the law: Discuss the policy of the law (client confidences). Discuss the current law in Columbia, the ABA Rule, The Rule in the Federal Circuits. Discuss the consequences of the old rule, mobililty of work force, client’s right to lawyer of choice, etc.
C. Recommend the modern rule
The judge must apply Columbia law as it exist now- she cannot make new law. This is not an appellate court. Suggest to judge that adopting the modern rule is not contradicting the Columbia supreme court because Columbia law is not clear on this point- (particularly after SpeeDee Oil). Therefore she could interpret SpeeDee Oil as permitting a law firm to rebut the presumption.
D. Using the modern rule (rebuttable presumption), are the facts of the Jergens case sufficient to rebut the presumption?
Apply the facts of this case to the standard. Make good use of the memo which “screened off” Jergens. Discuss whether or not the screening which was described in the memo is likely to be effective. Compare the screening in the memo with the screening in Hogland, and in City and County of Ames. The screening in both these cases was held to be sufficient to rebut the presumption of shared confidential information.
IV. RECOMMENDATION (A simple two sentence conclusion)
Based on a comparative analysis of the facts, make a recommendation: That she adopt the modern rule. That NCHC not be disqualified because when the facts of Jergens are applied to the modern rule, the screening in this case was sufficiently effective (or not) to rebut the presumption that the confidential information will be shared.