Before the Court en banc. Opinion by Justice Douglas.
The underlying appeal in this case involves a district court’s order dismissing all claims of Ryan’s Express Transportation Services, Inc. (“Ryan”) against Amador Stage Lines, Inc. (“Amador”). Upon appeal, the case was assigned to the Court’s settlement program. The settlement conference was unsuccessful. Subsequently, counsel for Amador (Ellen Jean Winograd) joined the law firm of Woodburn and Wedge. Woodburn and Wedge is the same law firm that the settlement conference judge (Nicholas Frey) works for. As a result, Ryan’s counsel filed a Motion to Disqualify Amador’s counsel. In ruling on the Motion to Disqualify, the issue before the Nevada Supreme Court is whether screening is appropriate with regard to a settlement judge acting under the Court’s settlement conference program or how to determine the sufficiency of any screening measures utilized. The parties agreed that Frey is disqualified because, as the settlement judge, he “participated personally and substantially” as a third-party neutral and informed consent in writing was not obtained as required by Nevada’s Rules of Professional Conduct (“RPC”) 1.12(a). As a result, the Woodburn and Wedge law firm is disqualified unless it can demonstrate that Frey was timely and adequately screened off pursuant to RPC 1.12(c). The Court held that screening of lawyers, under the applicable rules of professional conduct, may be used to rebut the presumption of shared confidences. The Court also adopted an approach requiring Nevada’s courts to conduct an evidentiary hearing to determine the adequacy and timeliness of the screening measures on a case-by-case basis. The burden of proof is upon the party seeking to cure an imputed disqualification with screening to demonstrate that the use of screening is appropriate for the situation and that the disqualified attorney is timely and properly screened. The factors considered are: (1) instructions given to ban the exchange of information between the disqualified attorney and other members of the firm; (2) restricted access to files and other information about the case; (3) the size of the law firm and its structural divisions; (4) the likelihood of contact between the quarantined lawyer and other members of the firm; and (5) the time of screening. Because an evidentiary hearing has not been conducted in this matter, the matter was remanded to the district court. The Court further indicated that while no rule or statute specifically authorizes it to remand a matter for additional fact-finding, that such power for remand comes from the inherent power of the courts. Remanded for additional fact-finding. (Lisa M. Wiltshire, Associate in the Reno office of McDonald Carano Wilson.)
