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Screen nonlawyer employees for conflicts of interest
By Peter H. Geraghty
Susan J. Michmerhuizen
It is the eleventh hour in a decades-long class-action suit. Your firm has invested hundreds of thousands of hours in the case, and settlement finally appears to be at hand.
Many law firm personnel have come and gone during this period of time. You are sitting at your desk, idly glancing at an email introducing new paralegal assistants. For a second you glance down at the résumé of a new paralegal. With growing concern, you note that this new employee has previously worked for the other side on this same class-action suit to which she now is assigned at your firm.
Hurriedly, you seek to determine what matters she has been assigned and what, if any, effect this might have on the upcoming settlement negotiations.
The ABA Model Rules apply to lawyers but not to their nonlawyer employees. Instead, the rules mandate that lawyers who hire nonlawyers must supervise their work and ensure that their conduct likewise conforms to the ethics rules. This duty is most clearly spelled out in ABA Model Rule 5.3, Responsibilities Regarding Nonlawyer Assistants, which states in pertinent part:
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer;
This rule puts the responsibility directly on the supervising lawyer to see that the nonlawyer employees comply with the Rules of Professional Conduct.
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In the case of a nonlawyer moving between law firms, even where the individual in question may have worked on a case that involves the new law firm, the ethics rules do not call for an automatic disqualification of the entire law firm. Paragraph 4 of the comment to Rule 1.10, Imputation of Conflicts of Interest: General Rule,* states this clearly:
 The rule in paragraph (a) also does not prohibit representation by others in the law firm where the person prohibited from involvement in a matter is a nonlawyer, such as a paralegal or legal secretary. Nor does paragraph (a) prohibit representation if the lawyer is prohibited from acting because of events before the person became a lawyer, for example, work that the person did as a law student. Such persons, however, ordinarily must be screened from any personal participation in the matter to avoid communication to others in the firm of confidential information that both the nonlawyers and the firm have a legal duty to protect. See Rules 1.0(k) and 5.3.
*This comment was revised in 2002 pursuant to the ABA Ethics 2000 Commission's recommendations. The commission evaluated the Model Rules in 2000. Its revisions to Model Rule 1.10 can be seen here. The reporter's notes on this particular change are available here.
ABA Informal Ethics Opinion 88-1526, Imputed Disqualification Arising From Change in Employment by Nonlawyer Employee (1988), addressed some of the issues raised in the above hypothetical. The headnote of the opinion states:
A law firm that employs a nonlawyer who formerly was employed by another firm may continue representing clients whose interests conflict with the interests of clients of the former employer on whose matters the nonlawyer has worked, as long as the employing firm screens the nonlawyer from information about or participating in matters involving those clients and strictly adheres to the screening process described in this opinion and as long as no information relating to the representation of the clients of the former employer is revealed by the nonlawyer to any person in the employing firm. In addition, the nonlawyer's former employer must admonish the nonlawyer against revelation of information relating to the representation of clients of the former employer.
State bar opinions
In the scenario described above, the lawyer discovers the new hire at the most inopportune time, after the employee has begun work and too late to address any involvement she may have had while at the former firm. In order to prevent these types of problems from occuring, many state bar associations strongly suggest the use of a conflicts check when hiring nonlawyer legal professionals. See, e.g. Los Angeles County Bar Association Professional Responsibility and Ethics Comm., Op. 524 (2011) advised that law firms conduct such a check with new nonlawyer employees:
… A law firm hiring a nonlawyer employee should determine whether the nonlawyer may have been exposed to an adversary's confidential information through prior employment at a firm that is opposing counsel to the hiring firm on any current cases.
Oregon State Bar Ethics Opinion 2005-44 (8/05) found that nonlawyers are not susceptible to imputed disqualification and that the lawyers' supervisory responsibilities are sufficient to avoid misuse of confidential information.
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North Carolina State Bar Ethics Comm., Formal Op. 2010-12 (1/21/11) also stated that a law firm has an obligation to screen new lawyers to discover any conflicts they may bring from their student employment.
In South Carolina Bar Ethics Opinion 93-29, the committee opined that the rules on imputed disqualification do not apply when nonlawyer personnel move among firms, but instead, that the necessary protections for client confidentiality in that situation are found in Rule 5.3, which governs supervision of employees.
Also, in Los Angeles County Bar Association Professional Responsibility and Ethics Comm. Legal Ethics Opinion 524 (5/16/11), the committee emphasized that the legal ethics rules are for lawyers and apply to their nonlawyer employees through the rules giving oversight responsibilities to supervisory or senior lawyers. Mississippi State Bar Ethics Comm., Op. 258 (12/1/11) stated "lawyers are responsible for assuring that their nonlawyer staff acts in accordance with the lawyer's ethical obligations. "
Screening of the newly hired nonlawyer is also recommended by the Restatement (Third) of the Law Governing Lawyers §123 (cmt. F)(2000), and the majority of state and local bar ethics opinions agree. See, Alabama State Bar Opinion RO-02-01 (2/18/02) (disqualification may be avoided if the client waives the conflict and approves a screening device); Connecticut Bar Association Opinion 00-23 (12/27/00) (firm may take a case even though one of its nonlawyer assistants has worked on the same case for opposing counsel, if the firm uses timely and effective screening procedures); Los Angeles County Bar Association Professional Responsibility and Ethics Commission Opinion 524 (5/16/11) (hiring firm must screen the nonlawyer and take other measures to protect the information from being shared within the firm); Maine Board of Bar Overseers Professional Ethics Commission, Op. 186 (2004) (rules on imputeddisqualification were intended to apply only to lawyers and that the rule on supervising nonlawyers was not intended to expand imputed disqualification to nonlawyers' conflicts); and Tennessee Supreme Court Board of Professional Responsibility Formal Op. 2003-F-147 (6/13/03) (eliminating former "appearance of impropriety standard") .
Case law, law reviews
For more reading, here are citations to two relevant law review articles: Natalie Chalmers, "Zimmerman v. Mahaska Bottling Co. : Kansas's Tactical Disqualification Weapon," 15 Kan. J.L. & Pub. Pol'y 369 (Winter 2006); Cecile C. Edwards, "Law Firm Disqualification and Nonlawyer Employees: A Proposal for a Consistent Analysis," 26 Miss. C. L. Rev. 163 (2006–2007).
For case law on the topic, see: Leibowitz v. Eighth Judicial Dist. Court, 78 P.3d 515, 19 Law. Man. Prof. Conduct 624 (Nev. 2003); Green v. Toledo Hosp., 764 N.E.2d 979, 18 Law. Man. Prof. Conduct 218 (Ohio 2002); Hayes v. Cent. States Orthopedic Specialists Inc., 51 P.3d 562, 18 Law. Man. Prof. Conduct 271 (Okla. 2002); Phoenix Founders v. Marshall, 887 S.W.2d 831 (Tex. 1994); Koulisis v. Rivers, 730 So. 2d 289, 15 Law. Man. Prof. Conduct 27 (Fla. Dist. Ct. App. 1999); Zimmerman v. Mahaska Bottling Co., 19 P.3d 784, 17 Law. Man. Prof. Conduct 191 (Kan. 2001); In re Bell Helicopter Textron Inc., 87 S.W.3d 139, Tex.App. -Fort Worth, May 20, 2002 (NO. 2-02-058-CV) 18 Law. Man. Prof. Conduct 327 (Tex. App. 2002); In re Guaranty Insurance Services Inc., Tex., No. 10-0364, 7/1/11, rev'g 26 Law. Man. Prof. Conduct 288; and In re Columbia Valley Healthcare System LP, 20 S.W.3d 819, 53 Tex. Sup. Ct. J. 1106, Tex., August 27, 2010 (NO. 08-0995).
The bottom line is that law firms should perform conflict checks when contemplating hiring nonlegal employees. If conflicts are found, having that information at the initial stage of employment will allow the firm to implement an appropriate screening system at the best time. Next month's Eye on Ethics will address the elements of a screen.
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