Volume 19, Number 1
When Legal Assistants Change Jobs
By D. Jeffrey Campbell and Frank A. Custode
Lawyers who employ legal assistants have ethical obligations that are triggered by both their hiring and departure. In order to protect your clients and your practice, it is necessary to be aware of those ethical obligations and to establish procedures to meet them.
The most common situation involving ethical obligations occurs when the newly hired legal assistant previously worked at a law firm representing a party adverse to a client of the hiring lawyer. By hiring the legal assistant, the lawyer runs the risk of disqualification in pending litigation. Is the only option to find another candidate, or can the lawyer take steps to ensure that client confidences are preserved and that he or she is not disqualified?
Two appellate courts have determined that because legal assistants often have access to vital client information, strict standards are necessary (In re Complex Asbestos Litigation, 232 Cal. App. 3d 572 (Cal. Ct. App. 1991); Stewart v. Bee-Dee Neon & Signs, Inc. , 751 So. 2d 196 (Fla. Dist. Ct. App. 2000)). The hiring firm must (1) obtain the written consent of the legal assistant’s former employer or client before hiring the legal assistant; and (2) have an effective screening process in place to avoid the potential for disclosure of confidential information.
The California court found that the hiring attorney, not the legal assistant, must obtain the written consent from the prior employer when the legal assistant possesses confidential attorney-client information materially related to pending litigation. This is because the legal assistant is unlikely either to know enough about the new job or to have the proper legal ethics training to obtain informed consent. In addition, the Florida District Court of Appeal noted that disqualification can be avoided if the hiring lawyer obtains the written consent of the client. Like the California court, the Florida court noted that the hiring lawyer should obtain the consent because it is his obligation to ensure nondisclosure of confidential information.
Each court provided a primer in how to create a screen to separate the newly hired legal assistant from potential conflicts. The screen should be put into place before the new legal assistant is hired. The hiring lawyer must clearly instruct and supervise both the new employee and other non-lawyer employees about the ethical issues to ensure that the new legal assistant will be completely isolated from communication on the matter.
Various methods can be used to establish such a screen. Although these methods will vary based on the size and structure of the hiring firm, its internal operating procedures, and the nature and scope of the litigation involved, the hiring lawyer should do the following:
1. Instruct the newly hired legal assistant not to discuss the case with anyone.
2. Restrict the legal assistant from access to the computer and paper files relating to the case.
3. Prohibit all attorneys and non-lawyer employees from discussing the case with or in the presence of the new employee.
If these steps are taken and documented, the lawyer can rebut any presumption of shared confidences and avoid disqualification.
The ethical obligations of the supervising lawyer in the legal assistant’s former firm are less obvious, but significant. For example, under Florida Rule of Professional Conduct 4-5.3, the original supervising lawyer has an independent duty to instruct the departing legal assistant of the ethical obligation not to reveal to the hiring firm any confidential information regarding the former firm’s clients. The original supervising lawyer should also consider formally advising the hiring firm that the legal assistant must be isolated from participation in any matter in which the new and former firms are adverse.
D. Jeffrey Campbell is the managing principal of Porzio, Bromberg & Newman in Morristown, New Jersey, and a member of the firm’s litigation department. Frank A. Custode is an associate at Porzio, Bromberg & Newman and works in the firm’s commercial litigation practice group.