Drop Dead Diva, "The Chinese Wall" (Season 1, Ep. 4) (8/2/09): Unconsentable concurrent conflicts and limits of screening (MR 1.10, MR 1.7, MR 1.18)

Contributed by Yuneun Trujillo-Lopez

Attorney Jane Bingum (Brooke Elliot) and attorney Grayson Kent (Jackson Hurst) work in the same law firm. When Mrs. Dobkins (Sharon Lawrence) asks Grayson to represent her in divorce proceedings, he clearly and promptly declines because Mr. Dobkins (Mark Moses) has already hired Grayson to represent him in the same divorce proceedings. When Jane finds out, she offers to represent Mrs. Dobkins. Grayson immediately asks her to step outside and tells her they cannot represent both Mr. and Mrs. Dobkins in the same litigation, to which Jane responds that it is possible if a screen or "Chinese Wall" is put in place. It turns out, Jane's assessment is wrong and a violation of MR1.7 regarding concurrent conflicts.

This case is a straight-forward case of a non-consentable concurrent conflict and a possibly failed screening attempt.

The clients in this scenario are both two opposing sides in a divorce. It is clear that there is a conflict of interest under both the Model Rules and the CA Rules. Under MR 1.7, there is a concurrent conflict whenever there is direct adversity between the client's interests.

Under CA Rule 3-310(c)(2), "member shall not accept or continue representation of one client in a matter in which the interests of the clients actually conflict." In this case, it is clear that the client's interests are directly adverse and there is actual conflict. Grayson understands that he cannot represent both of them.

Ordinarily, under MR 1.10, a conflict for one lawyer is imputed to others in the firm.  Can Jane represent Mrs. Grayson? No.

Jane, quoting some version of the rules, describes "screening" (what has been called a "Chinese Wall"), which can allow certain conflicts.  In order for a screening procedure to be effective, the lawyers would have to be timely screened (before they have opportunity to disclose confidential facts to each other) and neither must be apportioned any part of the fee earned by the other. Furthermore, written notice must be given to the affected clients.  What she misses is that screening only works under MR 1.10 when the conflict is a former client conflict (under MR 1.9), not a concurrent conflict (under MR 1.7).  There is no screening sufficient to allow two associated lawyers to represent husband and wife in an adversarial divorce.  That the managing partner seems not to know this violates MR 1.1(competence) and MR 5.1 (responsibilities of supervisory lawyers).

MR 1.18(d) might overcome the conflict if it were not unconsentable.  Treating the wife as the prospective client, and assuming both husband and wife consented to this representation by associated lawyers, as long as Grayson was kept completely out of the representation of Mrs. Dobkins, it could work. But not here.

This is an unconsentable conflict under MR 1.7(b)(3), because the clients are asserting claims directly against one another.


Comments

  1. When I first saw this scene, the whole concept of the Chinese Wall was fascinating. I didn't think that it was possible for two lawyers in the same firm to be adversaries. But after today's first class and this post, I now see and understand why the application of the concept was done incorrectly. Moreover, Parker, the managing partner, agreed with Jane's application of this concept while Grayson disagreed. Further violation of the Model Rules in regards to duties we owe to the lawyers in our firm and to our junior associates. Also, this concept was used again on the show, by Owen, a former judge and now managing partner. It goes to show that attorneys and judges sometimes overlook the rules.

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