This is a state by state thing. West Virginia in particular does not allow the Chinese Wall.
The general rule is that you may not be adverse to a current client (and client involves these consultations discussed above) in any case.
You may not be adverse to a former client in a same or similar case.
The “same or similar” can come with a bunch of caveats. Imagine if I represent Fred against Barbara in a divorce. Fred confides in me that he has a serious drinking problem and wants me to know that because Barbara will use it against him for child custody purposes.
Two years later, Dave sues Fred in a car accident case. I must decline representing Dave, even though the case is not similar, because I then almost must use Fred’s drinking problem against him: information that I acquired in confidence.
In the UK, while an individual barrister might well be conflicted, it would not affect another barrister in the same chambers and both sides could well be represented by barristers who share a room in their chambers. This is because they are not employed but are individuals whose loyalty is only to the client.
When your tricky case breaks for (a long) lunch and you pop over from the law courts to the Wig and Pen for a sandwich and a pint, and you see your and the other side’s barristers having lunch with the judge, you just have to rely on their sense of ethics.
Interesting. My wife worked in Texas, so I assume the rules must be different here. What you say certainly makes sense for an individual attorney, but doesn’t seem as if it would need to be quite so stringent for a firm with dozens of attorneys working in several different states. I assume the rule is to avoid even the appearance of impropriety.
Pardon my ignorance, but what does “share a room in their chambers” mean? Are all UK barristers considered independent even if they work for a firm or is it two barristers who happen to share office space to save on rent?
I think the idea is something like, if Bill is representing A Co. in a patent lawsuit against B Ltd. and then B Ltd. tries to hire Susan to represent them in a wrongful termination suit, it might be possible to do that without violating any ethics rules. Bill and Susan might work in different offices and not even know each other. Or maybe they know each other but Bill does patent law and Susan does labor law and they have no knowledge of each other’s cases. So, I think the idea is to make as much money as possible from both the larger party and the smaller party without violating any ethics rules. But, I’ll be honest, it’s been 10 or 15 years since my wife told me this and I may have misunderstood how it works. Or, as UltraVires pointed out, it’s a state-by-state thing and maybe I’ve understood it correctly for Texas, but it works differently in whatever state the “list” exists in.
Just to be clear, WV is in the vast minority. Most states allow the Chinese Wall.
I think it has a lot to do with the fact that “large” firms have a different definition in WV than in TX. We don’t have these mega-firms in multiple states. Hell, our largest city only has 60,000 people.
The large firms (by our definition) have been trying for years to get the Chinese Wall allowed in WV. The argument against it is one of perception. People think that lawyers are all sleazy and corrupt anyways and don’t need any additional help by having these types of ethical loopholes. So what is a person to think when they hired Smith Law Firm two years ago, but now Smith Law Firm is suing them with the promise that the confidential information is shielded from the attorney that is now suing them?
They think, “Sure, those fucking asshole lawyers are doing everything they can to screw me and I don’t trust them.”
Barristers aren’t in professional partnerships, unlike solicitors in the U.K., and lawyers in North America. They can share chambers on a contractual basis, hire support staff jointly, and so on, but they’re not partners.
They’re retained in a case-by-case basis by the solicitor who acts for the litigant. They don’t have a direct contractual relationship with their litigant client.
It’s a system that is designed to encourage independence on the part of barristers.
It also means that two barristers may be in the same chambers, but they’re not partners or employees, so can act without the sort of restriction that applies to lawyers in a partnership.
While that means that there may not be a professional bar to two barristers in the same chambers acting against each other, there still would be a professional duty of confidentiality to their clients, which could take some managing if they’re in the same chambers.
A “chambers” is a bunch of barristers who share office space, support staff, etc without being in a business partnership with one another, or having any interest in one another’s earnings. You could think of it as a purchasing co-op whereby a bunch of self-employed sole traders pool their resources to buy accommodation, support services, resources, facilities, etc that they can all use.
Typically, they will all be on one premises, and that premises will also be referred to as their “chambers”.
You would say “chambers” because you don’t have an equivalent entity. Just like you would call a kimono a kimono, because you don’t have an equivalent. It’s not just a shared office space - it’s an association, run by a clerk who maintains the premises and sometimes decides which cases get given to which barristers.
Well, son of a gun, I had thought barrister was just another word for lawyer, but your answer sent me to Google and I have now been enlightened on the differences between barristers, solicitors and lawyers. And chambers makes sense now as well. Thank you.
In Canada we have a limited Chinese wall, to allow individual lawyers to transfer from one firm to another.
If Lawyer Smith works for Black and White, Barristers & Solicitors, but gets a job offer from Shades, Of, Grey, LLP, the Shades firm will inquire if Smith has worked on any files that involve Shades, and has any confidential information. If so, Smith will be segregated from those files, can’t work on them, has to leave the room if they’re discussed, and so on. But it’s transitional: eventually that file will wrap up.
I’ve never heard of a case where a Chinese Wall is built in a firm on an ongoing basis to allow Smith to work on a file, against Jones in the same firm. That’s an appearance of conflict and a breach of the firm’s duty of loyalty to their client.
I remember when the infamous Betty Broderick represented herself in both her divorce and the murder trial after she killed her ex-husband and his second wife (or in at least one of those cases) because she claimed that she couldn’t get legal representation due to her husband being the president of the local attorney’s association. A talking head on the program replied, “The vast majority of lawyers in that city would never have heard of him, and even if he was their best friend, it wouldn’t have mattered as long as they were paid.”
I was also noodling around on my local court blotter, and found a divorce case where about 10 attorneys recused themselves from the case at the same time. THAT must have been a doozy of a split.
Ethically, if you are capable (i.e., qualified, not otherwise engaged and no conflict) of taking on a case, you are supposed to take it. (Cab rank rule)
And typically, are all represented by the same “clerk”, who is as the “manager’ is to an entertainment act like Elvis Presley. So there is never a big conflict of commercial interest for the 'clerk” He gets his cut either way. But not always the same clerk! In which case there is a conflict of commercial interest, and, by my very limited observation, the commercial relationship can get a bit testy.
I recall someone I knew mentioned that so-and-so was a attorney in a Canadian city who specialized in handling divorces for wives of lawyers and judges. A difficult job if ever there was one… but on the other hand, the rest of the profession has to be very careful not to give any grounds in any court cases for claims of bias.
Barristers specialise in courtroom advocacy, but solicitors do a wider variety of legal work, much of which does not involve going anywhere near the courthouse.
I think they call it a “firewall” these days. Same principle, just less “racial”.
When I worked at a consulting firm years ago that specialized in “litigation consulting” and later in the Big-4, we had to follow a similar procedure for “conflict checks”. It’s even more complex in the Big-4 as there is the additional rules around being an auditor. The point being that as we were typically hired by law firms, we don’t want to be seen as being hired by law firms on both sides of the same case.