Risk Update

Law Firm Ethical Walls — DOJ Puts One Firm’s Screening Policies and Practices Under Scrutiny

Fifteen years and no gray hair ago, as firms were investing in replacing memoranda-driven screening with electronically-enforced ethical wall software, I had a few discussions with firms about the implications of the move from paper to digital.

Specifically, I recall discussions regarding how electronic paper trails and logs can capture a great deal of (sometimes surprising to lawyers) information — and that questions of “what was possible” versus what “actually happened,” or even what system configuration were in place at what times —  were sure to follow as the arguments caught up to technology and practice.

I recall a story or two about about a brief, accidental access to a document in a shared library created a disqualifying data point for a firm, permanently logged. So I’m not surprised to see the “how” behind the why under the microscope as firms engaged in walls-related disqualification fights. Without judgement on the specific to this one, I noted: “DOJ Wants More Info On Morgan Lewis’ Glenmark, Teva Work” —

  • “Prosecutors urged U.S. District Judge R. Barclay Surrick to require Morgan Lewis to answer a series of questions about its ability to ethically represent Glenmark Pharmaceuticals Inc. USA in the generic-drug price-fixing case. The department has taken issue with the firm’s prior representation of fellow defendant Teva Pharmaceutical Industries Ltd. in the criminal probe and its continued representation of both companies in parallel civil litigation.”
  • “Morgan Lewis has rejected the DOJ’s conflict of interest concerns, arguing that it has strict safeguards in place to prevent attorneys assigned to each client from accessing confidential information about the other. But the government said in a Friday letter that the firm must explain exactly how these safeguards work and answer explicitly whether any of its attorneys have performed overlapping work on the two companies.”
  • “‘[The U.S. requests] additional details regarding the ethical wall put in place at Morgan Lewis to address the firm’s representation of both Glenmark and Teva, including whether any Morgan Lewis attorneys working on this criminal matter on behalf of Glenmark had access to Teva’s confidential information, either during the pre-indictment stage of this criminal matter, during the time when Morgan Lewis attorneys were representing Teva after Teva was indicted in this matter, or in relation to the pending parallel civil matters,’ the DOJ wrote.”
  • “Glenmark’s attorneys at Morgan Lewis and Wilkinson Stekloff LLP urged the court to reject the DOJ’s request in a response letter on Monday, saying the government’s ‘overbroad, intrusive and entirely unnecessary’ list of questions is wrongly attempting to elicit its trial strategy.”
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