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The ABA intended to clarify paragraph (d) that an individual lawyer cannot provide representation against former clients if it violates Rule 1.9, even if the representation was not in the same case, but in an essentially related case in which it is likely that the lawyer received confidential client information. See the ABA Ethics Committee 2000 Revision Notes on Model Rule 1.11. However, under the Model Rules, such conflicts are not attributed to a lawyer working in a government agency, even if formal review mechanisms are not in place. The absence of credit applied to disqualifications under former Model Rule 1.11(c), but not necessarily to disqualifications from a current government lawyer under Rule 1.9, which would otherwise apply to Rule 1.10. Screening is not required for public agencies, as it may not be practical in some situations. Nevertheless, comment 2 expresses the hope that such a lawyer will actually be verified when practical. Kobre & Kim asked the court to reject what they called an “absolutist” approach to the rules and asked the court to forgive or ignore shortcomings in the implementation or timing of the procedures used and apply a practical or “common sense” test. The court agreed that an absolutist or “hypertechnical” approach would be unfair to Kobre & Kim`s client, but the court also said that “tolerating less vigilance and careful adherence to the rules would be unfair to the respondents and Casey`s former client and would invite future demands for `practical` rather than thoughtful compliance.” (2) all other matters covered by the conflict of interest rules of the competent governmental authority. Despite Casey`s personal disqualification due to his personal and substantial involvement and the acquisition of confidential government information during his time at the U.S. Attorney`s Office, Kobre & Kim asserted that she could continue to represent Essex Equity ethically because she complied with the screening and notification requirements outlined in Rule 1.11(b) and effectively isolated Casey from the case. The plaintiffs (the respondents to the arbitration) countered by arguing that Kobre & Kim had been “allegedly disqualified because Casey is disqualified” and that the prequalification was irrelevant.

Thus, the effectiveness of screening has become a central issue in court. [7] Subsection b(2) does not require counsel to notify the government agency at a time when advance disclosure would harm the client; an advance disclosure requirement could prevent the lawyer from engaging. However, such notice must be given as soon as possible so that the government agency has a reasonable opportunity to ensure that the lawyer complies with rule 1.11 and to take appropriate action if the court considers that the lawyer is not complying. The Bar of the District of Columbia (DC) is even more restrictive than the ABA. Rule 1.11(a) of the Law Society of DC prohibits a former employee from accepting employment in a matter identical or substantially related to a matter in which the lawyer has personally and substantially participated as a public servant or employee. Under this rule, there is no waiver and the former government lawyer is not even allowed to work “behind the scenes.” The best way, and the one the court has chosen, is the one described in Commentary 7 to Rule 1.11, which allows for testing, but warns: “A small business may need to exercise special diligence and vigilance to maintain effective testing, but if appropriate precautions are taken, small businesses may meet the requirements of [Rule 1.11].” This led the court to a final question: Did Kobre & Kim actually “take special care and vigilance to maintain effective screening,” as mentioned in Comment 7? The Court noted that this was not the case – and this part of the statement I am referring to now is rich in lessons for all law firms that hire former government lawyers. One mistake was that there is a significant difference between Casey`s need to personally disqualify himself and the company`s need to adopt procedures to protect itself from accidental disclosures. Simply informing U.S. staff that prosecutors would work for Kobre & Kim and avoid conflict “does not give the agency enough information to determine whether the company is taking steps to protect itself from accidental disclosure or the use of trust.” As recommended in Footnote 7B to Rule 1.11, the notice to the Agency should include “a description of the certified counsel`s previous representation and the selection procedures used.” Casey`s talks with the United States…

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