Critics attack scheme to extend conflict screening to all lawyers

CONFLICTS OF INTEREST: business lawyers seek approval of plan to end client consent

Increased use of screening would solve the conflict problems faced by firms in a world of growing globalisation, law firm mergers and greater lawyer mobility, the ABA's Ethics 2000 commission heard this week.At present, the commission's own preliminary position remains close to existing professional conduct rules, under which the entire firm may be disqualified if a lawyer has previously represented a client's opponent.

Client consent for the firm continuing to act can always be sought.Screening - separating the lawyer from confidential client information - is only currently available to former judges and government lawyers returning to practice.However, under a proposal from the ABA's business law section, screening would be extended to cover all lawyers and client consent would no longer be required.The news comes as Clifford Chance - which merged with New York firm Rogers & Wells on 1 January - announced moves to centralise conflict checking to cope with the problems inherent in managing a global law firm.The firm has clearance centres in London, New York, and Frankfurt and will shortly open one in Hong Kong.

Lawyers must refer all new matters to the centres for checking.Robert Berner, a partner at the Chicago office of Baker & McKenzie, told the commission that under the existing rules, the clients miss out because they cannot always use the lawyers they like and want.

'Theoriginal rules were made when people practised alone or in small firms and they were directed mainly at litigation.

Now we have very large firms with multiple offices, and the whole nature of practice has changed - and those important rules are just not based on the reality we know,' he said.Ethics commission member Lawrence Fox said it was ironic that at a time when the ABA is endorsing and reaffirming its core values - particularly that of loyalty to the client in the multidisciplinary practice - its business law section should come up with a proposal which 'dramatically undermines' that principle.'Most clients grant consent in this situation and if they don't it is usually for a good reason.

It is still an issue for the client to decide,' he argued.The business law section has also proposed changes to ensure that lawyers can rely on advanced consent waivers against future conflicts.

At present, advanced waivers which are too wide or non specific are not enforceable in the courts.

Sue Allen