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is licensed in State B and practices law from the firm’s office in State B.

State B employs Model Rule 1.10(a)(2) which allows (as do most states — but not Delaware) the law firm to screen a lawyer for conflicts without obtaining the consent of the affected clients. However, State B has not adopted Model Rule 1.10(a)(2) and would impute the lawyer’s lawyer a conflict to Lawyer B unless Lawyer B’s former client and current client give informed consent confirmed in writing.

The Committee concluded that if the conflict in litigation is in State B, State B’s screening rules would govern and screening is not an option to prevent imputation. If the matter is transactional, the location of lawyer conduct, in this case the firm’s office in State B would be the site of the predominant effect and State B’s rules requiring informed consent would apply.

The Committee goes on to recommend that in litigation matters with significant contacts in more than one jurisdiction, it may be unclear where the predominant effect of the representation will occur. For those situations, the Committee recommends following the more restrictive rule and obtaining the informed consent of each affected client confirmed in writing.

Conclusion. Rule 8.5 is too often overlooked. It is often the answer to (and cause of) many professional responsibility questions.

“Ethically Speaking” is intended to stimulate awareness of ethical issues. It is not intended as legal advice nor does it necessarily represent the opinion of the Delaware State Bar Association.

“Ethically Speaking” is available online. Columns from the past five years are available on www. dsba.org.

Charles Slanina is a partner in the firm of Finger & Slanina, LLC. His practice areas include disciplinary defense and consultations on professional responsibility issues. Additional information about the author is available at www. delawgroup.com.

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