After identifying some of the problematic areas of conflict analysis, the Committee then turned to the definition of “related to” and stated that, according to existing jurisprudence and ethical opinions, this was a very factual analysis that defied the simple rules of the clear line. NYC Bar 2007-2 [citing Hempstead Video, Inc. v. Village of Valley Stream, 409 F.3d. 127 (2d Cir. 2005); ABA Op. 88-356; NYSBA Op. 715]. However, the Board justified this decision by the fact that the two most important issues for the analysis are “the nature of the lawyer`s relationship with the law firm” and “whether the lawyer has access to the confidences and secrets of the registry clients.” [NYC Bar 2007-2.] On this last point, the Commission concluded, following the implementation of the Hanstead-Video case, that the use of ethical screens and other similar measures to prevent a lawyer from being aware of other law firm cases than those on which he is working, are effective means of preventing the lawyer from having “access to the secrets of trust and secrets of clients”. NYC Bar 2007-2 [citing Hempstead Video, supra, 409 F.3d to 134-136]. As a general rule, the seconded law firm is not responsible for the MP`s work with the community organization. The Community Rule of Law Association is generally responsible for ensuring the MEMBER`s professional liability and businesses and community organisations must make arrangements for this coverage for seconded lawyers. Examples of how professional compensation can be dealt with in secondment agreements in point 3.11.
The Committee recognized that under existing conflict rules, including DR 5-101, Dr. 5-105 (A) and (B), DR 5-108 (A) and (B) and DR 9-102, the focus is whether the seconded lawyer remains “bound” to the law firm during his or her time in the host organization or not. The Committee identified a number of conflicts that would arise (and would be attributable to the operation of DR 5-105[D] if the seconded lawyer is still considered to be linked to the law firm. The parties to the detachment agreement should define the terms of the relationship with the letter. Such an agreement should cover the duration of intermediation, insurance issues and treatments. Examples of detachment agreements are included in Detachment Agreements 3.11. Not all secondments end with the lawyer`s return to her original law firm: some relationships could quickly evolve into a full-time in-house counsel position if the needs and wishes of the lawyer and the host organization coincide. The Committee acknowledged, however, that many detachments are only for a specified period of time and considered two important conflict considerations that need to be addressed after the detachment. A lawyer who has spent time in the legal department of the host organization will undoubtedly have greater access to his trust and secrets than an outside lawyer would normally do. While these secrets and secrets are essential for another registry client (as in the hostile acquisition example described above and at the beginning of the 2007-2 notice), the firm was unable to represent that other client without the client`s informed consent.
This raises an interesting question that goes beyond the scope of this article – whether and how a “detachment agreement” can address these conflicts in advance. With respect to full-time or long-term secondments, it is in the best interests of the Member and the company that mechanisms be put in place to ensure that the Member has a permanent relationship with the company during the secondment.