In Defense of a Double Standard in the Rules of Ethics: A Critical Reevaluation of the Chinese Wall and Vicarious Disqualification

This Note suggests that no change is warranted at the present time; courts should not adopt the Chinese wall defense to vicarious disqualification of private firms. The Chinese wall should, however, continue to operate as an internal device for protection of confidentiality. As such, it encourages firms to avoid disqualification by obtaining client consent to successive representation. Neither the historical record of the work of the Commission on the Evaluation of Professional Standards (the Kutak Commission), the empirical evidence currently available, nor the pragmatic arguments offered by many commentators justify an exception to, or modification of, the standard of imputed disqualification. Part I examines the historical development of the rule of vicarious disqualification, explaining the underlying rationale for the rule, the position of those who favor the rule as adopted in the Model Rules, and how the rule evolved with an exception for attorneys leaving government service. Part II discusses the status of the Chinese wall as a defense to vicarious disqualification, reviewing recent challenges to the present rule. Finally, Part III assesses the prospects for, and wisdom of, a change in the standard given the position that the courts have taken, the process of change within the ABA, and the practical problems of providing adequate guarantees against such conflicts of interest.