Attorney Professional Forum: Can Ethical Screens Resolve Conflicts of Interest?
7.18.2025
To the Forum:
I am a senior associate at Jones & Smith, a 30-lawyer firm on Long Island. One of the two founding partners, Tom Smith, came to me yesterday with astonishing news: he had just told his co-founder, Elbert Jones, that he (Tom) was leaving to go to a rival firm, Young & Zachary. He told me he had asked Elbert for permission to speak to me about coming with him, and Elbert – with whom I rarely work – had agreed. Tom has offered me a partnership at Y&Z, and I’m excited about the possibility. Tom is also hoping another J&S associate, Alan Able, will come with us.
There are, however, two major problems. First, Tom, Alan and I have for years been representing MegaManu, Inc., a large, closely held manufacturing company, in an antitrust dispute with its rival Cartels-R-Us, Inc. Cartels-R-Us is represented in that action by Y&Z. Over the years, I have had limited involvement in the case: I have taken a couple of depositions of mid-level witnesses and been at occasional meetings with client representatives discussing case strategy. Tom is the main interface with the client and has principal responsibility for the case; when a major tactical decision has to be made in the case, or a principal needs to be deposed, Tom handles that. Alan’s involvement in the case has mainly been limited to conducting legal research.
Second, Alan comes from a wealthy family, and he is the beneficiary of a family trust that owns 33% of MegaManu’s stock. The value of that stock would be adversely affected if MegaManu loses the lawsuit.
I have expressed concern about all this creating a conflict if we move to Y&Z. Tom has spoken to Y&Z about it and they say there is no problem – all we have to do is create an ethical screen. I heard that a recent change in the ethics rules might impact our response, but I don’t know what that change is and how it could help us.
May all three of us move to Y&Z? Will an ethical screen work to avoid a disqualification motion in the MegaManu/Cartels-R-Us case?
Sincerely,
W. E. Moving
Dear W. E. Moving,
New York has long maintained a strict approach concerning the imputation of conflicts of interest under the governing ethics rule, New York Rule of Professional Conduct 1.10, and relevant case law. Traditionally, New York has disqualified entire law firms based on the conflict of one lawyer, without allowing firms to use ethical screening to solve the problem. Ethical screening is the method by which a lawyer is isolated – or “screened” – from the rest of the firm so that they cannot pass information they may have about conflicted representations to other lawyers.[1] The screen must not only be effective, it must be timely – imposed as soon as reasonably possible after the conflict is discovered.[2]
But the rules we live by are subject to change. Over the past two decades, evolving national standards, the practical realities of lawyer mobility, and critiques of the harshness of the automatic imputation rule culminated in New York’s amendments to Rule 1.10 last January. These amendments represent a significant shift, particularly in permitting screening to cure conflict problems for certain lateral moves and narrowing the automatic imputation of personal interest conflicts.
New York’s Traditional Approach to Imputation and Disqualification
Since the enactment of the New York Rules of Professional Conduct in 2009, and indeed for decades before that under New York’s Code of Professional Responsibility,[3] New York’s ethical rules provided for strict imputation of conflicts. Until the recent amendments, Rule 1.10(a) read:
“While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7 [client-to-client and personal interest conflicts], 1.8 [specific types of conflicts] or 1.9 [former client conflicts], except as otherwise provided herein.”
Put bluntly, this means that if one lawyer had a conflict, every lawyer in the firm was deemed to have the same conflict – no matter how large the firm and whether the lawyer with the conflict was located in the same office as the other firm lawyers working on the matter causing the conflict. While Rule 1.10 did, to be sure, have exceptions, they were limited – for example, if the lawyer’s leaving means no one left in the former firm has any material confidential information about the matter,[4] if the lateral lawyer’s new firm has no one left with material confidential information about the now-adverse client’s matters,[5] or if the conflicts are waivable and properly waived.[6] This strict imputation rule created real problems for lawyers moving laterally, as the possession of material confidential information about a case by a lawyer contemplating a move to the adverse firm – no matter how junior the lawyer or limited their role in the case – would be enough to stop the move.
Consistent with this strict language, New York courts historically adopted a rigid stance on the imputation of conflicts of interest, based heavily on concerns of loyalty, confidentiality, and public trust in the integrity of the judicial process. Early federal and state court decisions established the trajectory that eventually led to the necessity for reform.
In Cinema 5 Ltd. v. Cinerama, Inc., the Second Circuit early on endorsed strict disqualification principles. The court emphasized that even the appearance of impropriety could warrant disqualification. (“‘[A]n attorney must avoid not only the fact, but even the appearance, of representing conflicting interests[.]’”).[7] In Cinema 5, where an attorney was a partner at two firms who represented both parties in the litigation, the court held that “because of the peculiarly close relationship existing among legal partners, if [the attorney] is disqualified, his partners at [his law firm] are disqualified as well.”[8]
Similarly, in Cheng v. GAF Corp., the Second Circuit demonstrated a rigorous attitude, disqualifying a law firm based on the movement of a lawyer who had exposure to confidential information, even if the information’s relevance to the new matter was not particularly clear.[9] In Cheng, the attorney in question worked as a legal services attorney who represented the plaintiff (Cheng) in an employment action against the defendant (GAF).[10] However, the attorney, as conceded by the plaintiff, did not represent the plaintiff in any litigation.[11] While the action was still pending, defense counsel hired the plaintiff’s attorney to work in their firm.[12] Defense counsel opposed disqualification by arguing that it had effectively screened the attorney from the ongoing Cheng case.[13] The court, however, questioned the feasibility of a screen as the defense counsel had “a relatively small firm.”[14] The court further echoed the Cinema 5 decision’s concern about avoiding the appearance of impropriety.[15]
State court decisions parallel these developments. For example, in Cardinale v. Golinello,[16] the New York Court of Appeals, after disqualifying a small firm lawyer from an action, likewise disqualified all attorneys in that firm from such representation. However, the court eventually loosened its grip, at least a little bit. In Solow v. Grace & Co., the court acknowledged that while a presumption of shared confidences arose when a lawyer moved between firms, it could theoretically be rebutted. (“In this situation, the court must presume that the rights of the former client are jeopardized by [the law firm’s] subsequent representation of plaintiffs, but [the law firm] should be allowed to rebut that presumption by facts establishing that the firm’s remaining attorneys possess no confidences or secrets of the former client.”).[17]
However, the court made clear that overcoming the presumption was a difficult task, stating “[i]f the firm can demonstrate prima facie that there is no reasonable possibility that any of its other attorneys acquired confidential information concerning the client, a hearing should be held after which the court may determine that disqualification be unnecessary.”[18] In other words, the party seeking to avoid disqualification must prove that any information acquired by the disqualified lawyer is unlikely to be significant or material in the litigation. The court’s framework still tilted heavily toward disqualification, absent compelling proof of an effective screen.
This conservative approach was reaffirmed in Kassis v. Teachers’ Ins. and Annuity Association. There, the Court of Appeals held that an ethical screen was insufficient to rebut the presumption of shared confidences where a lawyer, although an associate, had significant involvement in a matter at the former firm, having handled depositions and discovery conferences.[19] Importantly, the court rejected the sufficiency and practicability of precautionary measures under the screen because of the attorney’s “extensive participation in the Kassis litigation,” and finding that “defendants’ burden in rebutting the presumption that [the attorney] acquired material confidences is especially heavy.”[20]
Hempstead Video: The Approach Begins To Change
Over time, signs of a shift began to emerge in the Second Circuit. Six years after Kassis, in Hempstead Video, Inc. v. Incorporated Village of Valley Stream, the Second Circuit confronted a situation where an “of counsel” lawyer to a firm had previously represented a party that had since become adverse to the firm’s client.[21] Rather than imposing automatic disqualification, the court permitted continued representation provided that effective screening measures were in place.[22] (“We see no reason why, in appropriate cases and on convincing facts, isolation – whether it results from the intentional construction of [an ethical screen] or from de facto separation that effectively protects against any sharing of confidential information – cannot adequately protect against taint.”). Although Hempstead Video involved an “of counsel” relationship – structurally more attenuated than that of a partner or associate – it signaled a growing recognition that strict imputation rules might not always be appropriate, particularly where modern law firm structures and ethical screens could realistically protect client confidences.
Recognizing that it was time for a change, the American Bar Association came to that conclusion at approximately the same time, and in 2006 amended Model Rule of Professional Conduct 1.10 extensively to allow for screening on all lateral moves, as long as certain conditions were met. These conditions included written notice to the former client of the screening procedures, an initial certification that correct screening procedures are being followed, and later certifications to the same effect at “regular intervals” during the life of the matter.[23]
Following Hempstead Video, federal district courts in New York were much more willing to allow nonconsensual screens in the context of lateral moves, particularly if the lawyer moving was an associate or had a minimal role in the case causing the conflict.[24] But these decisions were not always uniform.[25] Moreover, state courts remained much more likely to follow the plain language of Rule 1.10(a) and the rule of Kassis, continuing to disqualify lateral lawyers who had played a minimal role in the case at their former firms.[26] The short of it is that whether a New York court would allow a nonconsensual screen in a given case became more and more difficult to predict, making even a junior associate’s lateral move increasingly risky.
In 2018, responding to growing dissatisfaction with this state of affairs, the New York State Bar Association, through its Committee on Standards of Attorney Conduct, proposed amendments to Rule 1.10. Composed of practicing attorneys, academics, and judges, the committee was specifically tasked with evaluating and recommending improvements to New York’s ethical framework. Recognizing that New York’s rules had fallen out of step with the ABA Model Rules and the realities of modern law practice, the committee advocated for a more pragmatic approach. Its proposals sought to permit the use of nonconsensual screens in appropriate circumstances so as to reduce the risk that a lateral move would result in disqualification. After a seven-year process, a new version of Rule 1.10 was promulgated in January, ushering in a more flexible, case-sensitive approach to imputation and disqualification.
The 2025 Amendments to New York Rule 1.10
The 2025 amendments to Rule 1.10 of the New York Rules of Professional Conduct mark a pivotal shift in the state’s approach to imputed conflicts. The amendments introduced three key reforms: (1) limiting the imputation of personal interest conflicts; (2) narrowing disqualification based solely on file retention; and (3) allowing screening of lateral hires in most situations.
First, Rule 1.10(a) was revised to limit the automatic imputation of personal interest conflicts under Rule 1.7(a)(2). Under the prior rule, a lawyer’s personal conflict – such as a financial interest in the outcome of a matter – was imputed to the entire firm, even where no other lawyers were affected. The amended version creates a carve-out: if the conflict is based solely on a lawyer’s personal interest, and a reasonable lawyer would conclude that no significant risk exists of materially limiting the other firm lawyers’ representation, then the conflict is not imputed. This change reflects a recognition that personal conflicts – particularly those involving family or financial ties – do not necessarily impair the judgment or independence of uninvolved colleagues.
Second, the amendments clarified Rule 1.10(b) to address situations where lawyers with knowledge of a matter have departed the firm and taken the client with them. Previously, the firm’s mere possession of files related to the former client could trigger disqualification. The revised rule shifts the focus to actual knowledge: disqualification may occur only if a lawyer remaining at the firm has actual knowledge of, or has accessed, the former client’s confidential information. This clarification reduces the risk of strategic disqualification motions and aligns New York more closely with jurisdictions that emphasize the functional realities of law firm information management.
Third, and most significantly, Rule 1.10(c) now expressly permits the use of ethical screening to prevent the imputation of conflicts arising from lateral hires. The prior version of the rule essentially refused to recognize screening outside narrow exceptions. The amended rule allows for screening, except in litigation or adjudicative matters where the lateral lawyer either (1) substantially participated in managing the case, or ( 2) had substantial decision-making authority on a continuous basis. In those situations, the risk of taint is deemed too great for a screen to suffice. This compromise approach retains safeguards for highly sensitive transitions while offering a pathway for many routine lateral moves.
These amendments also bring New York closer to Model Rule 1.10(a)(2), which has long permitted screening to avoid firm-wide imputation. However, New York’s rule remains more conservative, still prohibiting the use of screens for lateral lawyers who held material leadership roles in the relevant matter. Whether courts will strictly enforce these limitations or follow the Second Circuit’s more flexible approach in cases like Hempstead Video remains to be seen.
Together, the 2025 changes to Rule 1.10 reflect a deliberate effort to balance client protection with lawyer mobility and firm autonomy. They preserve core ethical values while offering pragmatic solutions to modern conflicts scenarios.
Application of the Amended Rule to Your Question
Applying the 2025 amendments to the question that you have addressed to the forum reveals the kinds of nuanced, fact-sensitive analysis the revised Rule 1.10 now invites. The key questions are whether the move of the three lawyers – Tom, W.E. Moving (the author of the inquiry above), and Alan – to Young & Zachary, which represents the adversary in the same litigation, would create an imputed conflict, and whether that conflict could be cured through screening.
Our most immediate concern arises from Tom’s role. He is not someone who had a minor role in the litigation. He is the primary relationship partner with MegaManu and has handled all major strategy decisions in the litigation. If Tom were to move to Y&Z, Rule 1.10(c) would likely prohibit screening as a solution because he “substantially participated “in the management and direction of the case” and had “substantial decision-making responsibility” on a continuous basis. Consequently, his move would likely result in an imputed conflict to Y&Z, requiring disqualification if the firm continued to represent Cartels-R-Us in the matter, regardless of the timeliness or efficacy of any screen.
The analysis is more complicated with respect to Moving and Alan. Moving had relatively limited involvement – taking a couple of depositions and attending occasional meetings – but did not manage the case or handle principal witnesses. Alan’s role was more limited still, consisting mainly of legal research. On these facts, neither Moving nor Alan appears to have had substantial day-to-day control or leadership responsibilities over the matter. Under the revised Rule 1.10(c), both would be able to move to Y&Z, provided proper screening procedures are implemented to prevent access to information or contact with the lawyers handling the litigation at Y&Z.
However, Alan’s situation introduces a second issue – he has a personal interest conflict. He is the beneficiary of a family trust that owns 33% of MegaManu’s stock. Under Rule 1.7(a)(2), a lawyer may not represent a client if there is a significant risk that the representation will be materially limited by the lawyer’s own financial interests. The amendment to Rule 1.10(a) provides that such personal conflicts are not automatically imputed to others at the firm unless a reasonable lawyer would conclude that the personal interest poses a significant risk to other lawyers’ independent judgment. In this case, Alan’s financial interest in the outcome of the litigation likely disqualifies him personally but would not be imputed to other Y&Z lawyers – especially if Alan is screened from the matter.
In sum, Tom’s move would almost certainly create a conflict for Y&Z that could not be cured by screening. Moving, on the other hand, could potentially move to Y&Z if they are properly screened and do not carry material confidential information or decision-making authority. Alan would need to be removed from the case because of his personal interest, without that being imputed to the rest of the firm. Still, the presence of Tom – whose role triggers the exception to screening – would likely render Y&Z subject to disqualification altogether. The amended rule provides a pathway in limited circumstances, but not where lead litigation counsel changes sides.
Conclusion
The 2025 amendments to Rule 1.10 represent a thoughtful evolution in New York’s approach to imputed conflicts. After decades of rigid presumptions and blanket disqualifications, the state has moved toward a more nuanced regime that balances client protection with the realities of a modern, mobile legal profession. By narrowing the scope of imputation for personal interest conflicts, clarifying the limits of disqualification based on file retention, and – most significantly – authorizing screening in many lateral movement scenarios, the revised rule aligns New York more closely with national standards while preserving vital ethical boundaries.
Still, the amended rule retains important safeguards, particularly in litigation contexts where the risk of taint and unfair advantage is greatest. As the question here illustrates, even under the new framework, lawyers with significant responsibility for a matter – like Tom – cannot avoid imputation through screening. The revised Rule 1.10 gives lawyers more flexibility when they change firms, but not at the expense of core principles of loyalty and confidentiality that govern our profession.
The Forum by:
Ronald Minkoff (minkoff@fkks.com)
Khasim Lockhart (klockhart@fkks.com)
Vincent J. Syracuse (syracuse@thsh.com)
Question for the Next Professional Forum
To the Forum:
I am a longtime New York civil personal injury attorney. I thought that I had seen it all. Yet last year, while serving as a plaintiff’s trial attorney in a civil battery case, I had to call for testimony a friendly and key eyewitness, a grandmother, who had clearly seen the battery from her front porch. She had never testified in court; I met with her two days before trial. Picture the scene: trial is progressing; her time to testify arrives; I see her grandson in the courtroom at the appointed time and so I know that she is outside waiting for me to call her to the stand. The judge says curtly: “next witness.” I ask the judge for a few seconds so that I can send my paralegal to the hallway to get her. He says yes; the paralegal goes. Thirty seconds later, the paralegal opens the door and holds it for her – in she comes, in a wheelchair, struggling to move. This was a surprise to me – she had been perfectly ambulatory the two days before during prep.
As I approach the witness, I whisper, “What happened?” She looks up at me, smirks, and says, “My grandson thought I would seem more credible in a wheelchair.” I freeze. The judge looks at me impatiently, the jury staring at the witness. What to do? Too late; she is wheeling herself toward the witness stand. Do I address the subject with her in open court, or let it lie? Should I ask her about her wheelchair, more than likely eliciting a lie from her? Impeach her and discredit my own witness and quite possibly sink my client’s case? But her substantive testimony would be true and honest! What action did I owe to my client? To the court? To opposing counsel? “Get started, counselor,” the judge instructs. I decide to completely ignore her wheelchair and simply elicit from her exactly the testimony that I had prepped with her.
This went perfectly well, and to my knowledge she never lied. Upon her cross-examination, miraculously, the opposing counsel too made no mention of her wheelchair. We won the trial and to this day I have no reason to believe that her feigned disability made any difference in the outcome. But this was a very negative experience. And it has haunted me for a year. There was a multitude of ways in which it could have gone worse than it did. Did I do the right thing? What should a lawyer in my position have done?
Sincerely,
Marcus DeLafayette
Endnotes:
[1] See Rule 1.0(t) (defining “screening”).
[2] Id.
[3] See DR 5-105.
[4] See Rule 1.10(b).
[5] See Rule 1.10(c).
[6] See Rule 1.10(d).
[7] Cinema 5 Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1386–87 (2d Cir. 1976).
[8] Id. at 1387.
[9] Cheng v. GAF Corp., 631 F.2d 1052, 1059 (2d Cir. 1983).
[10] Id. at 1054.
[11] Id.
[12] Id.
[13] Id. at 1057.
[14] Id. at 1057-58. Many of these early cases referred to ethical screens as “Chinese Walls.” Since that term is now discredited, we use the term “ethical screen” throughout.
[15] Id. at 1058-59.
[16] 43 N.Y.2d 288 (1977).
[17] 83 N.Y.2d 303, 313 (1994).
[18] Id.
[19] Kassis v. Teachers’ Ins. and Annuity Ass’n, 93 N.Y.2d 611 (1999).
[20] Id. at 618-19.
[21] Hempstead Video, Inc. v. Incorporated Village of Valley Stream, 409 F.3d 127 (2d Cir. 2005).
[22] Id. at 138.
[23] MR 1.10(a)(2)(i)-(iii).
[24] See, e.g., In re Air Cargo Shipping Services Antitrust Litig, No. 06-Md-1775, 2016 WL 727171 at *6 (E.D.N.Y. Feb. 23, 2016) ((“[B]ecause [the lateral attorney] does not recall obtaining any confidences relating to any of the defendants now in the case, there is no risk that even inadvertent disclosures may occur.”); Revise Clothing, Inc. v. Joe’s Jeans Subsidiary, Inc., 687 F. Supp. 2d 381, 393 (S.D.N.Y. 2010) (denying motion to disqualify because “there [was] no substantial relationship between the [prior] litigation and the current case.”).
[25] See Gen. Sec., Inc. v. Com. Fire & Sec., Inc., No. CV 171194 (DR)(HAYS), 2017 WL 4119622, at *4 (E.D.N.Y. Sept. 15, 2017) ((“However, in situations where an attorney shares only limited connections with a firm, such as attorneys often referred to as ‘of counsel,’ a court may find that the attorney and the firm are not ‘associated’ for purposes of conflict imputation . . . Courts deciding whether to impute an ‘of counsel’ attorney’s conflict to an entire firm look to ‘the substance of the relationship’ between the attorney and the firm.”).
[26] See e.g., Rodeo Family Enterprises, LLC v. Matte, No. 600378/2010, 2011 WL 1879056, at *4 (Sup. Ct. Nassau Cnty, May 6, 2011) (following Kassis and disqualifying lawyers who performed 3.8 hours of billed work on matter); Gentile v. Gentile, 64 N.Y.S.3d 482, 486 (Sup. Ct. Rockland Cnty, 2017) (following Kassis and disqualifying attorney despite attorney having no recollection of attending any meetings regarding the defendant’s case).
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