Litigаnts in a civil sexual abuse case against a school district want the court to stop their lawyer’s new law firm from representing the school district in the litigation. The law firm, Bradshaw, Fowler, Proctor & Fairgrave, P.C., argues it has implemented a screening mechanism sufficient to prevent the disclosure of confidential information between the disqualified associаte, Jason Palmer, and the other members of the firm. The district court found adequate screening procedures were in place to ensure there was no actual conflict between the other members of the firm and its client. Because the representations by Palmer for the plaintiffs and the Bradshaw law firm for the defendants bear a substantial relationship to each other, we reverse and remand.
I. Facts and Background
Russell Alan Gronewold, an eighth-grade teacher at Perry Middle School was convicted of sexually abusing Jane Doe, one of his fourteen-year-old students. Attorney Brent Cashatt of Smith, Schneider, Stiles, Hudson, Serangeli, Mallaney <& Shindler served as Doe’s guardian ad li-tem in the criminal case. Attorney Jason Palmer was an associate with thе Smith law firm at that time and appeared as the Does’ attorney.
Doe and her parents retained Cashatt, Palmer, and Jan Mohrfeld to represent them in their civil suit against Gronewold, the Perry Community School District, and principal Arthur Pixler. Palmer attended a pre-petition conference with the clients. He prepared a draft of the petition using the clients’ file, including internal memo-
On March 21, 2001, members of Bradshaw, Fowler, Proctor & Fairgrave, P.C., appeared on behalf of the school district and Pixler. Palmer joined the Bradshaw firm in August 2001. Because of the conflict between Bradshaw’s current representation of the defendants and Palmer’s prior representation of the Does, Palmеr filed a motion to withdraw as counsel for the Does.
The Does filed a motion to disqualify the Bradshaw firm based upon Palmer’s prior representation of the Does in the same lawsuit. The district court denied the motion. The court presumed confidences were divulged by the Does to Palmer in the prior representation which may be relevant to the сurrent representation. However, the court found it was clear Bradshaw ensured there was no actual conflict by creating a “Chinese Wall.” The court further noted to disqualify Bradshaw at this stage of the proceedings would deny the defendants counsel of their choice and place them at a disadvantage in the lawsuit. We granted the Does’ аpplication for interlocutory appeal.
II. Scope of Review
We review a ruling on an attorney disqualification motion for abuse of discretion.
Rickers v. Marsh & McLennan Group Assocs.,
III. The Merits
This case presents an issue of first impression in Iowa. We must determine whether a screening mechanism known as a Chinese Wall is sufficient to allow a law firm to eliminate the conflict of an attorney who switched sides of representation during the same case. In general, an attorney must be disqualified from representing a party against a former client if the two representations bear a “substantial relationship” to each other.
Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Walters,
In Iowa, we have not specifically dealt with the use of Chinese Walls in the attorney disqualifiсation context. 1 However, the Iowa Supreme Court Board of Professional Ethics and Conduct has endorsed the use of screening procedures. The Board first approved the use of screening procedures where appropriate in Formal Opinion 87-33, June 10, 1988. It stated,
Screening is the process through which a disqualified lawyer is isolated frоm other lawyers in the firm so that the firm can try to avoid disqualification. Some courts have modified the imputed disqualification rule [that any knowledge a disqualified attorney holds is imputed to the members of his or her law firm so as to disqualify the entire firm] by holding that in some instances the presumption of shared confidences may be rebutted by use of an effective scrеening mechanism to cordon off the disqualified lawyer, thereby preventing that lawyer from tainting the other members of thelaw firm. The screening procedure is commonly referred to as a “Chinese Wall.”
Id. (quoting ABA/BNA Lawyer’s Manual on Professional Conduct 51:2004 (1986)). The Board of Professional Ethics and' Conduct stated in appropriate situations carefully monitored sсreening policies and procedures can be effective. The Board has approved the use of the Chinese Walls to prevent disqualification of the entire law firm in various circumstances. See, e.g., Formal Op. 98-18 (Feb. 25, 1999) (Chinese Wall sufficient where conflict was fully disclosed and the clients consented); Formal Op. 98-09 (Dec. 8, 1998) (Chinese Wall sufficient to prevеnt disqualification of firm attorneys from practicing in juvenile court in same county where associate previously worked as assistant county attorney in adult and juvenile courts); Formal Op. 91-47 (May 18, 1992) (Chinese Wall sufficient where an associate could be shielded from the firm’s cases over which the associate’s husband, the Iowa Commissioner of Insurance, hаd jurisdiction); Formal Op. 87-33 (June 10, 1988) (Chinese Wall sufficient to screen new associate who is the wife of a department or division head in a state agency from the other members of the firm). Bearing in mind the purpose and use of a Chinese Wall, we now turn to the main issue.
We must determine whether the circumstances of this case require the Bradshaw firm’s disqualification from its rеpresentation of the school district and principal. Once the Does prove there' is a substantial relationship between the former and current representations, there is a presumption the attorney must be disqualified. Any knowledge a disqualified attorney holds is imputed to the members of his or her law firm so as to disqualify the entire firm.
Hoffmann v. Internal Med., P.C.,
The Does do not need to show confidences were actually disclosed by Palmer to prove a conflict exists.
Walters,
Bradshaw admits a substantial relationship exits between the two representations. Palmer’s former representation of the Does and Bradshaw’s current representation of the defendants involve the same case. Palmer filed a motion to withdraw from the current litigation because of his previous participation in the Does’ case. Thе pending lawsuit includes allegations that the school district and principal knew Gronewold molested Doe but did nothing to stop the continual harassment and abuse. Such issues necessarily involve sensitive and confidential information.
Because of the strong appearance of impropriety, once we conclude a substantiаl relationship exists between the two representations, disqualification cannot be avoided. See 7A C.J.S. Attorney & Client § 159, at 229. Our rules of professional responsibility allow us to consider the appearance of impropriety as one factor in an attorney disqualification analysis. “Public confidence in law and lawyers may be eroded by irresponsible or imрroper conduct of a lawyer. On occasion, ethical conduct of a lawyer may appear to laypersons to be unethical.” EC 9-2. “Every lawyer owes a solemn duty ... to strive to avoid not only professional impropriety but also the appearance of impropriety.” EC 9-6.
In examining whether the appearance оf impropriety exists, the mere possibility of impropriety is insufficient to warrant disqualification.
See State v. Van-over,
The extent of Palmer’s involvement in the prior representation is clear. Palmer first appeared in this case as Does’ attorney. One on occasion, Palmer met with Mr. and Mrs. Doe tо discuss whether the Does should file a civil law suit. Palmer had telephone conversations with the Does. He signed pleadings and entered his appearance on behalf of the Does. Brent Cashatt, Jane Doe’s guardian ad litem, testified “confidences were exchanged.” Paige Fiedler joined the Smith attorneys in the lawsuit only a few days prior to the datе the Does filed their lawsuit. Cashatt stated that prior to Fiedler taking over, Palmer had done most of the work on the case. Palmer drafted the petition in the civil suit. In drafting the petition, Palmer had access to the entire case file, including all internal memoranda, correspondence to and from the Does, and attorney notes from confidential meetings, and telephone calls with the Does. The Smith law firm ultimately filed Palmer’s draft of the petition with some revisions. Though there is some question regarding whether Palmer drafted the exact petition filed, there is no doubt Palmer signed the filed petition.
Given these circumstances, we find a reasonable layperson would conclude Bradshaw’s current representation would compromise the integrity of the trial and would harm the Does. This conflict before us did not arise as the result of Palmer’s prior representation in a different, unrelated matter.
Clinard,
Id.
Por a lawyer to represent the Does today, and the defendant school district and principal tomorrow in the same litigation “creates an unsavory appearance of a conflict of interest that is difficult to dispel in the eyes of the lay public or even the bench and bar.” Wafers,
Though Bradshaw concedes there is a substantial relationship between the prior and current representations, it attempts to minimize the degree of Palmer’s involvement in the plaintiffs case and emphasizes the steps it took to lessen his contact with the defense. Specifically, Bradshaw argues the use of a Chinese Wall allows the firm to avoid imputed disqualification. Bradshaw contends it has taken precautionary measures to prevent disclosure of confidential information. The firm asserts Palmer, now at the Bradshaw firm, has nо involvement in or access to the Does’ case. Bradshaw contends it has taken and will continue to take “appropriate safeguards to completely isolate Mr. Palmer from involvement- in or knowledge about this case.”
The presence or absence of a Chinese Wall does not enter into our analysis of whether there is a substantial relationship between two representations. We consider whether a substantial relationship exists based upon the nature and scope of the prior representation, the nature of the present lawsuit, and whether confidences may have been disclosed.
Hoffmann,
If, howеver, we conclude a substantial relationship does not exist, then we examine whether the firm has taken any measures to prevent disclosure of confidential information. Certain procedures must be followed to constitute a sufficient screening mechanism to prevent the potential disqualification of the firm. Such screening procedures must be timely implemented to protect confidential client information. We must also look at the nature and extent of the screening mechanism to determine whether it is adequate to prevent dissemination of confidential information between its new employee and the law firm.
Under the facts before us, even if we concluded there is not а substantial relationship between the representations, that would not guarantee Bradshaw the ability to continue its current represénta-
IY. Conclusion
We approve of the use of Chinese Walls under certain circumstances to overcome imputed disqualification of a law firm. Such circumstances do not exist in this case. There is а substantial relationship between the former and present representations. Accordingly, it is improper for Bradshaw to continue its representation and it must be disqualified. We conclude the district court abused its discretion in denying Does’ petition to disqualify Bradshaw. We reverse and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
Notes
. Other jurisdictions havе refused to recognize the use of Chinese Walls as a defense to an imputed disqualification.
See, e.g., Roberts v. Hutchins,
. Bradshaw argues the interests in avoiding the appearance of impropriety are outweighed by interests in preventing a chilling effect on the practice of law. The firm contends the practice of law will be severely affected beсause clients will no longer be free lo choose their own counsel. As a result, attorneys may become unwilling to represent certain clients.or hire laterally for fear of the potential of future conflicts. The list of horri-bles is unrealistic and not supported by the facts before us.
. Most of the steps taken were designed to stop any of Bradshaw’s clients' information from flowing to Palmer rather than Palmer imparting his knowledge to Bradshaw. The only evidence of a screening mechanism is the use of case management software to restrict Palmer’s access to the Bradshaw documents. This alone is insufficient to conclude Bradshaw's Chinese Wall is adequate to allow it to continue representation of the school district and principal.