The subparts of Minn. R. Prof. Conduct 1.10(b) are to be read conjunctively; therefore, under the rule, whenever one lawyer in a law firm has a conflict, the conflict will be imputed and the entire firm will be disqualified unless the information communicated to the lawyer is unlikely to be significant in the same or substantially related matters, appropriate screening is implemented, and notice is given to all affected clients.
The appropriate test for evaluating imputed disqualification of a lawyer in the private sector is Minn. R. Prof. Conduct 1.10(b), not the rule governing lawyer disqualification as articulated in Jenson v. Touche Ross & Co., 335 N.W.2d 720 (Minn. 1983).
Heard, considered, and decided by the court en banc.
The opinion of the court was delivered by: Anderson, Paul H., Justice.
Appellant Jackie Lennartson retained the law firm of Gregg M. Corwin and Associates to represent her in a sexual harassment action against her former employer, the Anoka-Hennepin Independent School District No. 11. The school district retained the law firm of Rider, Bennett, Egan & Arundel, LLP (Rider Bennett) to assist in its defense. Susanne Fischer worked as a lawyer with the Corwin firm and took one deposition on behalf of Lennartson. Corwin subsequently withdrew as Lennartson's lawyer.
Approximately three months after Corwin withdrew as Lennartson's lawyer, Fischer was hired as an associate lawyer at Rider Bennett. After learning that Fischer was with Rider Bennett, Lennartson moved to have Rider Bennett disqualified as the school district's lawyer. The district court granted the motion under Minn. R. Prof. Conduct 1.10(b). The Minnesota Court of Appeals reversed, concluding that the appropriate test for evaluating disqualification is that created by this court in Jenson v. Touche Ross & Co., 335 N.W.2d 720 (Minn. 1983). The court of appeals held that, under the Jenson test, disqualification is not appropriate on these facts; and alternatively, if Rule 1.10(b) is the correct test, disqualification is not required. We reverse.
In October 1999, appellant Jackie Lennartson retained the law firm of Gregg M. Corwin and Associates to represent her in a sexual harassment action under the Minnesota Human Rights Act. Minn. Stat. § 363.01-.20 (2002). Lennartson commenced her action on November 20, 1999 by serving her former employer, respondent Anoka-Hennepin Independent School District No. 11, with a Summons and Complaint. The certificate of representation and parties attached to the Summons and Complaint listed Gregg M. Corwin as Lennartson's lawyer. The school district filed its answer on December 15, 1999, listing as its lawyer the law firm of Rider Bennett, a firm of approximately 140 lawyers.
During the next year, the parties engaged in the following discovery: (1) the school district took Lennartson's deposition on August 22, 2000 with Lennartson, Corwin, and two lawyers for the school district present; (2) Corwin, assisted by Jennifer Duchscherer, a law clerk with his firm, deposed Timothy Ducklow and David Piechocki on September 18, 2000; (3) Corwin, assisted by Duchscherer, deposed Alfred Blue on August 18, 2000; and (4) Susanne Fischer, a lawyer with Gregg M. Corwin and Associates, deposed Louis Klingelhoets with Duchscherer's assistance on September 18, 2000.*fn1 Lennartson asserts that Fischer conducted "a crucial deposition," and that Fischer told Lennartson that she would"review the entire file" in preparation for the deposition. There is no evidence that either party conducted any further discovery.
On December 1, 2000, the parties appeared before the district court in response to Corwin's motion to withdraw himself and his law firm as Lennartson's counsel. The court granted the motion in a written order dated December 15, 2000, in which the court reasserted a trial date of March 5, 2001.
On March 5, 2001, when the case was called for a bench trial, Lennartson stated she was not ready to proceed because she had been unable to retain new counsel after Corwin's withdrawal. The district court construed this as a request for a continuance, which it granted. The court acknowledged the school district's objection to the continuance and noted that Lennartson had been given repeated reminders of the trial date. Accordingly, the court set a new trial date of June 1, 2001, but made clear, "[t]his is a trial date certain and there will be no further continuances of this trial date."*fn2 (emphasis omitted).
On March 26, 2001, Fischer was hired by Rider Bennett as an associate lawyer. In her "conflicts and screening report," Fischer disclosed that she had done "isolated work" in the Lennartson case, which she elaborated to mean she had filled in for Corwin on one deposition and had no involvement before or after that deposition. Based on this information, a member of Rider Bennett's conflict and ethics committee determined that "[Fischer] had not acquired any confidential information that would be significant in the matter" and could, therefore, be hired as long as proper notice was given and appropriate screening procedures were implemented.
The screening measures implemented by Rider Bennett were as follows. Affidavits were provided from the Rider Bennett lawyers who worked on this case and their assistants stating that they were specifically advised by the ethics committee not to discuss the case with Fischer or her staff and had not done so. Fischer and her staff were told of the ethical wall and told they were not allowed access to any information about the Lennartson case. Fischer was also physically screened from the case. The lawyers who worked on the case officed on a different floor than Fischer and they had "separate secretaries, separate legal assistants, and separate storage areas." Additionally, the files for the Lennartson case were stored in a cabinet on a separate floor from Fischer's office and each had two stickers stating: "an ethical wall has been imposed on this file with respect to ATTORNEY SusanNE Fischer"; and the cabinet in which these files were stored had a sign stating, "an ethical wall has been imposed on lennartson v. anoka-hennepin school district no. 11, 10924/r21611 with respect to ATTORNEY susanNE fischer."
Approximately one month after hiring Fischer and after screening her from Lennartson's case, Rider Bennett sent Lennartson a letter informing her that Fischer had joined the firm. Upon receiving the letter, Lennartson wrote to the district court stating that she had been unable to retain new counsel and that she believed Rider Bennett should withdraw from representing the school district. On May 24, 2001, after the case had been continued twice and one week before the case was scheduled to go to trial, the court conducted a hearing on Lennartson's motion to disqualify Rider Bennett. On June 6, 2001, the court granted the motion.
The district court made the following findings of fact: (1) Fischer took one deposition in connection with Lennartson's case; (2) Fischer reviewed the entire Lennartson file in preparation for that deposition; (3) while employed at Rider Bennett, Fischer did not work on Lennartson's case and the firm had instituted an ethical wall to ensure her nonparticipation; and (4) no evidence exists that Fischer shared any information with Rider Bennett regarding the case. The court then made the following conclusions of law: (1) the subject matters of the representations are substantially related; (2) Fischer received significant confidential information on the Lennartson case when she worked with Corwin; and (3) "competing equities" weigh in favor of Lennartson. The court went on to state that Minn. R. Prof. Conduct 1.10(b) controls, the three subparts to Rule 1.10(b) are conjunctive because they are "joined together by 'and' as opposed to 'or' or some other word of joinder," and under the rule disqualification is warranted. Accordingly, the court granted the motion to disqualify and continued the case for at least six months, setting a new trial date for February 13, 2002.
The school district appealed and the court of appeals reversed and remanded for trial. The court of appeals determined that Rule 1.10(b) is "conjunctive in part and disjunctive in part"; that the Jenson test is still the appropriate analytical tool for evaluating disqualification; and that under Jenson, Rider Bennett's disqualification is not required. Lennartson v. Anoka-Hennepin Indep. Sch. Dist. 11, 638 N.W.2d 494, 497-99 (Minn. App. 2002). Lennartson petitioned for review and we granted her petition.
The issue presented in this case requires an interpretation of the Minnesota Rules of Professional Conduct. Specifically, it requires us to determine whether Minn. R. Prof. Conduct 1.10(b) should be read conjunctively as it was by the district court, or as conjunctive in part and disjunctive in part, as it was read by the court of appeals. Once we interpret the rule, we must then address the question of whether the three-part balancing test we established in Jenson, 335 N.W.2d 720, conflicts with that interpretation and, if so, whether the Jenson test has been superceded by Rule 1.10(b) in cases of imputed disqualification of lawyers in the private sector. We have stated that we "must retain the final independent interpretive authority to define the scope and application of [the Minnesota Rules of Professional Conduct]." Prod. Credit Ass'n v. Buckentin, 410 N.W.2d 820, 823 (Minn. 1987). The interpretation of court rules presents a question of law. Huntsman v. Huntsman, 633 N.W.2d 852, 854 (Minn. 2001). Accordingly, our standard of review is de novo.
Before addressing the interpretation of Rule 1.10(b), a brief history of Jenson and the rule is necessary. We decided Jenson in 1983 and used it to articulate the following three-part test for evaluating lawyer disqualifications:
Considering the facts and the issues involved, is there a substantial, relevant relationship or overlap between the subject matters of the two representations?
If so, then certain presumptions apply: First, it is presumed, irrebuttably, that the attorney received confidences from the former client and he or she will not be heard to claim otherwise. Second, it is also presumed, but subject to rebuttal, ...