[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

Review by a neutral person of any information, matches, and explanatory
memoranda.
Responding to Conflicts
If a potential conflict is identified, the lawyer and firm must first determine whether the
conflict is consentable. If it is not, the lawyer must decline the matter. If discovered during
a representation as in Johnson and Sanford (Chapter 9), the lawyer and law firm must
withdraw. 7
Obtaining Informed Consent If, however, the conflict is consentable, as in Eastman Kodak
(Chapter 9), Liggett (Chapter 10) and Western Sugar (Chapters 9 and 11), the lawyer and
firm next must examine whether they are free, consistent with their confidentiality duties,
to disclose the information necessary to secure an “informed consent” from each affected
client.
When lawyers are able to seek client consent, Model Rules 1.7, 1.9, 1.10, 1.11, and
1.12 require that “each affected client gives informed consent, confirmed in writing.” 8
Model Rule 1.0(e) defines “informed consent” as the client’s agreement to the
representation “after the lawyer has communicated adequate information and explanation
about the material risks of and reasonably available alternatives to the proposed course of
conduct.” 9 A written confirmation of the client’s informed consent is designed to clarify the
nature of the conflict and “impress on clients the seriousness of the decision.” 10
Although an “informed consent, confirmed in writing” 11 does not require the client’s
signature or any specific language, it should be viewed as the written culmination of a
client’s understanding and agreement after the client has been given time to consider the
matter and raise questions or concerns. 12 To memorialize such an informed consent, the
lawyer is well advised to include a description of both the material risks and reasonably
available alternatives to the conflict in the written document. Western Sugar indicates the
danger of relying on forms 13 or boiler plate that do not specify the client’s situation and the
nature of the conflict. 14
Establishing and Maintaining Effective Screens Screens may be available to resolve some
former-client conflicts, either as part of the informed consent process, or if otherwise
recognized by the rules of professional conduct 15 or common law. 16 Western Sugar and
Martin agree with Model Rule 1.10(a)(2) that even when allowed, a screen also must meet
certain exacting criteria to qualify as “adequate.” 17
Model Rule 1.0(k) defines “screened” as “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.” 18 The New Jersey rule in Martin also
requires that “effective written procedures” be in place before the screen is established to
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