I. Introduction

Consider the following hypothetical. You have just received a call from the general counsel of RAMJAC Corporation,[1] the world’s largest corporation and maker of Everything. RAMJAC is in the process of building its new $1 billion world headquarters, but is having trouble with its contractor, BIGTIME Construction Company. RAMJAC’s general counsel is looking for representation should things heat up any further with BIGTIME, and to that end, he wants to interview your firm, Skeye, High, Billings, and several other firms for the position. A week later you show up at RAMJAC’s offices with an impressive PowerPoint presentation in hand. You and your partner, Ted Billings, meet for approximately an hour and a half with RAMJAC’s President and CEO, general counsel and RAMJAC’s Executive Vice President in charge of the world headquarters project.

You think things went well, but a week later you get the bad news from general counsel that RAMJAC has chosen one of your rivals across town. A few days later, when you are still licking your wounds, you get a call from BIGTIME’s general counsel who tells you they have just been terminated on the biggest project in the history of the company – the new RAMJAC world headquarters. He has made some inquiries about your reputation and wants to hire you on the spot. You think to yourself, this is too good to be true – a second bite at the big apple. But then, euphoria turns to nausea because you have a vague, but distinct, recollection from the days you crammed for the ethics exam that the interview with RAMJAC could be a spoiler – something about prospective clients, beauty contests, and the dreaded “D” word – disqualification. Although you cannot remember the details, you do indeed have cause for concern.

In 2002, the American Bar Association amended the Model Rules of Professional Conduct (“Model Rules”) to include Rule 1.18, Duties to Prospective Client. Rule 1.18 was enacted to address directly, for the first time, the issue of representation of a client against a prospective client. Prior to the adoption of Rule 1.18, “a kind of ethics limbo”[2] existed; the existing Model Rules addressing disqualification of attorneys applied only to representation of existing clients (Model Rules 1.7 and 1.8) and former clients (Model Rule 1.9). With the adoption of Rule 1.18, the Model Rules now address the parameters for disqualification of an attorney who later finds himself adverse to a party with whom he has had some contact but where that contact was deemed to have fallen short of establishing an attorney-client relationship. This article addresses the standard of disqualification applicable to a lawyer and his/her law firm who participates in an unsuccessful beauty contest with a prospective client and is later asked to represent a client adverse to that other party. Because the case law interpreting Rule 1.18 is just beginning to evolve, there are often more questions than answers regarding the Rule’s application.

II. Rule 1.18 Duties to Prospective Client

Rule 1.18 provides:

(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.

(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).

(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:

(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or:

(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and

(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(ii) written notice is promptly given to the prospective client.[3]

The rationale for Rule 1.18 is found in the official comments:

Prospective clients, like clients, may disclose information to a lawyer, place documents or other property in the lawyer’s custody, or rely on the lawyer’s advice. A lawyer’s discussions with a prospective client usually are limited in time and depth and leave both the prospective client and the lawyer free (and sometimes required) to proceed no further. Hence, prospective clients should receive some but not all of the protection afforded clients.[4]

III. Definition of “Prospective Client” and “Taint Shopping”

Subsection (a) of Rule 1.18 defines a prospective client as “a person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter . . . .”[5] Not all persons who discuss a potential matter with an attorney fall under the rubric of “prospective client.” For example, in Conn v. United Steel Corp.,[6] Colleen Conn (“Conn”), a member of Ironworkers Local 395 (the “Union”), sought to have Attorney Paul Berkowitz (“Berkowitz”), a union attorney who was adverse to her in a Civil Rights Act case, disqualified under Rule 1.18 on the ground that Conn had been a prospective client of Berkowitz in connection with an earlier Union grievance filed on behalf of Conn against Conn’s former employer. When Conn became dissatisfied with the Union’s handling of the grievance, Conn brought a civil action against her former employer and the Union under Title VII of the Civil Rights Act for discriminatory practices.[7] Berkowitz subsequently filed an appearance on behalf of the Union, and Conn moved to disqualify Berkowitz under Rule 1.18. The district court concluded that Conn was not a prospective client of Berkowitz based principally upon the fact that Conn admitted in her deposition that she did not consider that she was a prospective client of Berkowitz by virtue of Berkowitz’s representation of the Union in the grievance proceeding.[8] The court also emphasized that there had been only one meeting between Berkowitz and Conn, and it did not appear that the information she conveyed to Berkowitz during that meeting would be significantly harmful to Conn in her grievance against the Union.[9]

As stated in the annotation, Rule 1.18 requires a “good faith consultation about the possibility of forming a lawyer-client relationship.”[10] In the context of a beauty contest, a person will not be deemed to come within the definition of “prospective client” if the real purpose of the contest is to use it as a tool to disqualify certain attorneys or firms who might in the future be adverse to the contest holder.[11] This practice, commonly known as “taint shopping,” does not elevate a person to the status of a “prospective client” for the reason that it cannot be said that the contest holder entered into discussions with the attorney with “the possibility of forming a client lawyer relationship.”[12]

IV. The Limits on Adverse Representation – the “significantly harmful” test

Similar to the proscription in Model Rule 1.9 prohibiting adverse representation against a former client, Rule 1.18 prohibits an attorney from representing a client whose interests are “materially adverse” to those of a prospective client in “the same or a substantially related matter.”[13] Where Rule 1.18 departs from Rule 1.9, however, is that subsequent adverse representation is not proscribed unless the lawyer received information from the prospective client that could be “significantly harmful” to the prospective client in the matter at issue.[14]

The annotation to Model Rule 1.18 provides limited guidance with respect to the type of information which would qualify as “significantly harmful,” alternately describing such information as “critical,” “of significant use,” “extensive or sensitive,” “possibly detrimental” or “important to the subject matter.”[15]

Case law applying the “significantly harmful” standard to particular fact situations is also sparse. In Camcraft Holdings Corp. v. Shayban,[16] the court disqualified an attorney who was privy to a prospective client’s “personal thoughts and impressions regarding the facts of his case and possible strategies for a lawsuit.”[17] In Sturdivant v. Sturdivant,[18] an attorney in a divorce action was disqualified where the evidence showed that the prospective client had shared his personal journal with counsel and had also “disclosed everything he knew . . . about [his] children and his former wife.”[19] Finally in Kelly v. Indiana,[20] an attorney, while in private practice, who had been consulted by an accused murderer and later was elected as County Prosecutor representing the State against the accused murderer, was not disqualified on the strength of the attorney’s representation to the court that he remembered nothing of the consultation with the accused murderer which had taken place 14 years before the attorney was elected as County Prosecutor.[21]

V. Exceptions to Disqualification

Comment [6] to Model Rule 1.18 provides that an attorney is not prohibited from representing a client with interests adverse to those of a prospective client in the same or substantially related matter unless the attorney has received information from the prospective client that could be “significantly harmful” if used in the matter. However, where the attorney obtains such information, Rule 1.18 provides that the attorney and his/her entire firm are disqualified from representing a client adverse to the prospective client, with two exceptions.

First, both the individual attorney and his or her firm may avoid disqualification by obtaining “informed consent” from both the affected client and the prospective client. Second, absent informed consent, a disqualified attorney’s firm can nevertheless avoid disqualification of his firm by limiting the individual attorney’s exposure to more disqualifying information than necessary, screening that attorney from any participation in the matter, and promptly notifying the prospective client of the firm’s representation. These exceptions are discussed in greater detail below.

A. Informed Consent

Subsection (d)(1) for Rule 1.18 allows an attorney who otherwise has received disqualifying information from the prospective client to represent a client adverse to that prospective client if the attorney has received “informed consent, confirmed in writing” from both the client and the prospective client.[22] Comment [5] to Rule 1.18 refers to the definition of “informed consent” in Model Rule 1.0, which states that informed consent:

[d]enotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.[23]

The extent of disclosure necessary to obtain informed consent is a question that depends upon fact-specific circumstances, and unfortunately, we are unaware of any reported decisions discussing informed consent in the context of Rule 1.18.

In order to obtain informed consent, a “lawyer must make reasonable efforts to ensure that the client or other person possesses information reasonably adequate to make an informed decision.” [24] Ordinarily, this will require the attorney to (1) disclose the facts and circumstances giving rise to the situation, (2) explain the material advantages and disadvantages of the proposed course of conduct, and (3) discuss the client’s or other person’s options and alternatives.[25]

In determining whether the information provided by the attorney requesting consent was reasonably adequate for the client or other person to make an informed decision, a court may consider the following factors relevant: (1) “whether the client or other person is experienced with legal matters generally and in making decisions of the type involved,” (2) “whether the client or other person is independently represented by other counsel in giving the consent.” [26] Thus, attorneys should take extra care to provide thorough explanations in readily understandable language where those involved are individuals or unsophisticated companies not represented by counsel.

B. Advance Waiver

Comment [5] to Rule 1.18 provides that an attorney may condition conversations with a prospective client on the person’s informed consent that no information provided by the prospective client during the beauty contest will prohibit the lawyer from thereafter representing a different client in the matter. This amounts to an advance waiver, which Comment [22] to Model R. 1.7 expressly recognizes as valid in certain circumstances unless the conflict is otherwise nonconsentable.

The effectiveness of an advance waiver will “generally be determined by the extent to which the client [or in this case, a prospective client] reasonably understands the material risks that the waiver entails:”[27]

The more comprehensive the explanation of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding.[28]

Although we are not aware of any reported decisions discussing the validity of advance waivers obtained from prospective clients, it is generally accepted that such advance waivers will be considered valid when obtained consistent with the requirements of Model R. 1.7.

Accordingly, it is becoming common practice by firms across the country to obtain pre-engagement advance waivers to protect against disqualification before participating in a beauty contest. An example of such an advance waiver letter is as follows:

Dear RAMJAC:

You have expressed an interest in discussing with us the possibility of Skeye, High, Billings representing RAMJAC in (describe prospective engagement). We look forward to meeting with you on ____________ to discuss Skeye, High, Billings' qualifications and non-confidential information relating to the _________ matter.

You have indicated that you will be interviewing other law firms, and it is therefore possible that you may decide not to retain us in the matter. We understand fully your desire to proceed in that manner. You, in turn, understand and have agreed that no attorney-client relationship will exist unless and until you decide to retain Skeye, High, Billings, and Skeye, High, Billings agrees to represent you in this matter and an appropriate engagement letter has been executed.

You have also agreed that you will not disclose confidential information to us at our upcoming meeting, but only matters of general knowledge and facts already "of record". You have further agreed that nothing occurring at this meeting will be used to prevent Skeye, High, Billings from further representation adverse to RAMJACK if RAMJACK does not retain us.

Please sign below to indicate your agreement with the foregoing.

Very truly yours,

Ted Billings

AGREED TO AND ACCEPTED:

RAMJAC

By: ______________________

Title: _____________________

Date: _____________________

C. Lawyer Screening

Finally, even where an individual attorney is disqualified and unable to obtain informed consent, Rule 1.18 permits the disqualified attorney’s firm to avoid disqualification provided that certain prophylactic measures are taken in a timely manner.[29] Specifically, an attorney’s disqualification will not be imputed to his or her firm if:

[1] the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonable necessary to determine whether to represent the prospective client; and

[2] the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

[3] written notice is promptly given to the prospective client.[30]

The first condition presupposes that the disqualified attorney obtained information that could be “significantly harmful” to the prospective client. Thus, the focus must be on insuring that the attorney takes reasonable measures to avoid obtaining more disqualifying information than necessary in the process of determining whether to represent the prospective client. Care should be taken to limit the initial information received to that which is necessary for a conflicts check. Thus, the attorney should obtain only the names of the parties involved in the potential representation before receiving any substantive information and search the law firm’s conflict database to ensure (1) the firm is not already involved in the matter, and (2) no existing firm clients are already adverse to the prospective client.[31] Next, the attorney must cease discussions with a prospective client immediately upon learning that the firm will not be able to represent the prospective client.

These measures are highlighted in Beckenstein Enterprises-Prestige Park, LLC v. Lichtenstein,[32] in which the Court denied a former prospective client’s motion to disqualify the defendant’s law firm based on the prospective client’s prior consultation with another attorney at that law firm regarding the same matter. In denying the motion, based in part on Rule 1.18, the Court noted that the law firm identified the various individuals and entities involved in the potential litigation to determine whether the firm had a conflict of interest before discussing the merits of the prospective client’s legal claims and defenses.[33] Of equal importance, the Court noted that although the attorney involved in the subsequent merits discussion learned “potentially harmful confidential information” from the prospective client, that attorney immediately ended the discussion upon learning of the prospective client’s intention to initiate additional legal action against a firm client.[34]

Another step that may help avoid running afoul of this first condition is to advise the prospective client not to share any confidential information during the beauty contest or prior to formally engaging the law firm. This can be done apart from, or in conjunction with an advance waiver letter. Also, the attorney should not share any information learned from prospective clients with other attorneys in the firm; otherwise, it may not be possible for the firm to take effective screening measures at a later time.

The second condition is that the disqualified attorney be timely screened from any participation in the matter and may not receive compensation directly related to the matter.[35] As defined by the Model Rule 1.0, “screened” means:

the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law.[36]

Comment [9] to Model Rule 1.0 provides that, at a minimum, the “personally disqualified lawyer should acknowledge the obligation not to communicate with any of the other lawyers in the firm with respect to the matter,” and “other lawyers in the firm who are working on the matter should be informed that the screening is in place and that they may not communicate with the personally disqualified lawyer with respect to the matter.”[37] Comment [10] to Model Rule 1.0 provides that screening measures “must be implemented as soon as practical after a lawyer or law firm knows or reasonably should know that there is a need for screening” in order to be effective.[38]

The Court’s decision in Beckenstein[39] also provides guidance on this second condition. In Beckenstein, after the prospective client hired different counsel and commenced the litigation that was the subject of the initial consultation, the law firm was retained to represent a client with interests materially adverse to the prospective client in that litigation. The law firm did not identify the conflict during its intake procedures, and therefore did not take any screening measures until the former prospective client notified the law firm that it would seek disqualification.[40] In deciding that the law firm timely and effectively screened the disqualified attorney from participating in the matter, the Court noted that “as soon as” the issue of disqualification was brought to the firm’s attention, (1) it was agreed that the disqualified attorney would not participate in any way in the litigation, (2) the law firm sent a memo to all attorneys and employees for the firm instructing them not to discuss the litigation or its subject matter with the disqualified attorney, and (3) the law firm took steps to ensure that the disqualified attorney would not share in any part of the fee gained from the firm’s representation of the former prospective client.[41]

Finally, written notice must be promptly given to the prospective client.[42] Comment [8] to Model Rule 1.18 requires the notice to include: (1) a general description of the subject matter about which the disqualified attorney was consulted, and (2) the screening procedures employed.[43] In Beckenstein[44], the Court held that the law firm’s notice to its former prospective client was timely where it was given one month after the law firm was notified of the potential conflict.[45]

VI. NAVIGATING AROUND THE RULE

The foregoing discussion should alert the practitioner to the potential pitfalls involved in beauty contests and later representation of parties adverse to the contest holder.

If, for example, an attorney participates in a beauty contest and the beauty contest consists of no more than the attorney making a “pitch” for his/her services and obtaining the minimum amount of information necessary to perform a conflicts of interest check, subsequent adverse representation clearly would not be a problem under Rule 1.18.[46] If the information supplied by a contest holder during the beauty contest consists solely of basic facts surrounding the case of a non-confidential, public nature, it is similarly likely that the attorney would not be disqualified.[47] If, however, a contest holder shares confidential information with the attorney regarding the nature of the case and thoughts on tactics and strategy, the attorney and his/her law firm are likely to be disqualified in later adverse representation.[48]

There are steps an attorney can take to minimize the chances of disqualification. The first, and most obvious, is to obtain an advance waiver from the contest holder. But, as one commentator has observed, as a practical matter a prospective client may be put off by a request for an advance waiver because it could make the lawyer look defensive.[49] It may also have the subtle effect of implanting in the contest holder’s mind questions about the ultimate loyalty of the attorney to the prospective client’s cause. If one of the first thoughts that runs through an attorney’s mind when asked to make a pitch is about the prospect – often remote – that he/she might be cut off from future business, where will that attorney’s loyalty lie, say, when he/she is asked for a candid assessment of settlement?

Short of asking for an advance waiver, an attorney can still guard against the disqualification of his/her firm, even though the individual attorney may be disqualified, by showing that the attorney “took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client.”[50] In protecting himself/herself in that regard, the attorney should first obtain only the most basic information sufficient to check for conflicts of interest. Only then should the attorney begin to discuss the facts of the case. Once information comes to light indicating that the attorney should disqualify himself/herself, he/she should immediately inform the client that he/she must decline representation. See discussion supra at 10-11. The attorney would also be well advised to document, by way of detailed file memos, exactly what information was and was not shared during the beauty contest and what subsequent conversation(s) he/she had with the prospective client. As noted in several of the cases, years can go by between the beauty contest and the subsequent adverse representation.

Endnotes

[1] With apologies to Kurt Vonnegut.

[2] Model Rules of Prof’l. Conduct R. 1.18 annot. (2002) (quoting Margaret C. Love, Duties to Prospective Clients, 87 A.B.A.J. 59 (2001)).

[3] Id. R. 1.18. At last count, nearly all of the states have adopted Rule 1.18 in some form:

All states except Mississippi and Virginia have proposed or adopted this new rule regarding duties to prospective clients. California has not yet reviewed this rule. North Dakota’s rule refers to “potential” clients.

Rule 1.18, as adopted by the BA House of Delegates, permits screening of the lawyer who received the disqualifying information only if the lawyer took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client. An earlier draft of the Ethics 2000 Commission did not include this requirement.

Thirty-one states (Alaska, Arkansas, Colorado, Connecticut, Delaware, Florida, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Missouri, Nebraska, Nevada, New Hampshire, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, South Carolina, Utah, Vermont, Washington, Wisconsin and Wyoming) have included the new Model Rule requirement in their proposals or revised rules. Seven states (Arizona, Idaho, Maryland, Montana, New Jersey, North Carolina and Oregon) follow the earlier Commission draft. The District of Columbia does not require the consent to be confirmed in writing and does not have a provision for written notice. Florida,[*] Idaho and North Dakota do not include the screening option. Wyoming’s rule requires both the affected and prospective client to sign the writing.

As with the screening provisions that many states have proposed or adopted in Rule 1.10, some states do not require the client to be notified of the screen (District of Columbia, Illinois, Maryland and Missouri) and some states do not prohibit the disqualified lawyer from receiving part of the fee from the representation (Connecticut, District of Columbia, Missouri, New York, North Carolina and Oregon).

Charlotte K. Stretch & Susan M. Campbell, State Committees Review and Respond to Model Rules Amendments, 15 NO. 1 Prof. Law. 14 (2004, updated Nov. 30, 2007), available at http://www.abanet.org/cpr/jclr/review_art.pdf. [*Florida’s Rule was amended in 2006 to permit screening.]

[4] Model Rules of Prof’l. Conduct R. 1.18 cmt. 1 (2002).

[5] Id. R. 1.18(a).

[6] Cause No. 2:07-CV-00213-JVB-PRC, 2009 WL 260955 (N.D. Ind. Feb. 2, 2009).

[7] Conn alleged, inter alia, that the Union discriminated against her on the basis of sex by failing to refer her to jobs after she was terminated by her employer and by failing to take actions on her behalf that were taken on behalf of similarly situated males. Id. at *6.

[8] Id. at *5-6.

[9] Id. at *6.

[10] Model Rules of Prof’l. Conduct R. 1.18 annot. (2002).

[11] Id. (citing N.C. Ethics Op. 244 (1997) (concluding that a lawyer may not encourage his/her client to hold a beauty contest for the purpose of disqualifying other attorneys from representing the client’s adversaries)).

[12] 1 Geoffrey C. Hazard et al., The Law of Lawyering § 21A.4, at 21A-8 to -9 (3d ed. 2009). A parallel concept is set forth in the annotation to Rule 1.18 wherein a person will not be deemed a “prospective client” if that person “communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship . . . .” Model Rules of Prof’l. Conduct R. 1.18 annot. (2002). Thus, if a person knows, or has reason to know, that a lawyer either would not or could not take on a representation, a communication with that attorney about a matter would not create prospective client status.

[13]Id. R. 1.18(c). The operative language of Rule 1.18(c) is identical to that found in the Restatement (Third) of the Law Governing Lawyers § 15(2) (2000):

A lawyer . . . may not represent a client whose interests are materially adverse to those of a former prospective client in the same or a substantially related matter when the lawyer . . . has received from the prospective client confidential information that could be significantly harmful to the prospective client in the matter. . . .

[14] Model Rules of Prof’l Conduct R. 1.18(c) (2002). Under Rule 1.9, once it is determined that a lawyer is representing a current client against a former client in the same or a substantially similar matter, the attorney may not accept representation without obtaining informed consent from the former client. Id. R. 1.9(a), (b) (2002).

[15] Id. R. 1.18 annot.

[16] No. 06 CVS 5227, 2006 WL 2839255 (N.C. Super. Ct. Oct. 5, 2006).

[17] Id. at *7.

[18] 367 Ark. 514, 241 S.W. 3d 740 (2006).

[19] 367 Ark. at 522, 241 S.W. 3d at 746.

[20] 901 N.E. 2d 494 (Ind. 2009).

[21] Id. at 506, 507-08.

[22] MODEL RULES OF PROF’L CONDUCT R. 1.18(d)(1)(2002).

[23] MODEL RULES OF PROF’L CONDUCT R. 1.0(e)(2002).

[24] MODEL RULES OF PROF’L CONDUCT R. 1.0 cmt. 6 (2002).

[25] Id.

[26] Id.

[27] MODEL RULES OF PROF’L CONDUCT R. 1.7 cmt. 22 (2002).

[28] Id.; See also ABA Formal Opinion 05-436 (May 11, 2005).

[29] MODEL RULES OF PROF’L CONDUCT R. 1.18(d)(2)(2002).

[30] Id.

[31] Additionally, many large firms maintain former prospective clients in their conflicts database, together with the names of those entities who were potentially adverse to the former prospective client at the time the conflicts search. If such information is maintained in the conflicts database, subsequent conflicts searches should identify those situations where another attorney in the firm previously consulted a former prospective client on the same matter.

[32] 2004 WL 1966863 (Conn.Super. 2004), 37 Conn. L. Rptr. 627.

[33] Id. at *5.

[34] Id.

[35] MODEL RULES OF PROF’L CONDUCT R. 1.18(d)(2)(i) (2002).

[36] MODEL RULES OF PROF’L CONDUCT R. 1.0(k) (2002).

[37] MODEL RULES OF PROF’L CONDUCT R. 1.0 cmt. 9 (2002).

[38] MODEL RULES OF PROF’L CONDUCT R. 1.0 cmt. 10 (2002).

[39] 2004 WL 1966863 (Conn.Super. 2004), 37 Conn. L. Rptr. 627.

[40] Id. at *5.

[41] Id. Although Rule 1.18 and its comments do not provide any guidance regarding what steps must be taken to ensure that a disqualified attorney does not share in the fee, Comment [7] states that Rule 1.18(d)(2)(i) “does not prohibit the screened lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly related to the matter in which the lawyer is disqualified.”

[42] MODEL RULES OF PROF’L CONDUCT R. 1.18(d)(2)(ii) (2002).

[43] MODEL RULES OF PROF’L CONDUCT R. 1.18 cmt. 8 (2002).

[44] 2004 WL 1966863 (Conn.Super. 2004), 37 Conn. L. Rptr. 627.

[45] Id. at *6.

[46] Id. R. 1.18 cmts. 3, 4.

[47] Id. cmt. 4.

[48] See discussion supra p. 5.

[49] 1 Hazard et al., supra note 12, § 21A.4, at 21A-8 to -9.

[50] Model Rules of Prof’l. Conduct R. 1.18(c)(2) (2002).