Sept. 21, 2016 – The best candidate for your paralegal position works for a sole practitioner who represents the opposing party in a litigated matter. Can you still interview and hire this paralegal?
Question
Our firm needs to hire a new paralegal, and we have advertised for candidates. By far the best applicant is a paralegal for a sole practitioner in our city. Unfortunately, our firm is currently representing a client in a litigated matter in which the opposing party is represented by the sole practitioner. The paralegal is the lawyer’s only support staff and doubtless has worked on the matter. Could we interview and hire this paralegal, or would that conflict us out of the case?
Answer
When a lawyer joins a new firm, that lawyer brings their conflicts into the firm and, for the most part, imputes those conflicts to all the other lawyers in the firm. See SCR 20:1.10. That Rule, however, makes no mention of nonlawyer support staff, but Comment [4] to SCR 20:1.10 states:
“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 while 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.”
Therefore, the firm may hire the paralegal and still avoid disqualification provided the paralegal is screened from any participation in the matter and, of course, discloses no information about the matter to the new employer.
Have an Ethical Dilemma?
Ethical dilemmas affect every lawyer’s practice. This series of questions and answers appears each month in InsideTrack. The answers, offered by the State Bar’s ethics counsel Timothy Pierce and assistant ethics counsel Aviva Kaiser, are intended to provide guidance only and are not legal authority. Each situation will depend on the facts and circumstances involved.
As a State Bar member, you have access to informal guidance in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys. To informally discuss an ethics issue, contact Pierce or Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m. to 4 p.m.
This situation was also directly addressed by ABA Informal Ethics Op. 88-1526 (1988), which provides further guidance with respect to the responsibility of the firm hiring the paralegal:
“Model Rule 5.3 imposes general supervisory obligations on lawyers with respect to nonlawyer employees and agents. The obligations include the obligation to make reasonable efforts to ensure there are measures in effect to assure that the nonlawyer's conduct is compatible with the professional obligations of the lawyer.4 With respect to new employees who formerly worked for other lawyers, these measures should involve admonitions to be alert to all legal matters, including lawsuits, in which any client of the former employer has an interest. The nonlawyer should be cautioned: (1) not to disclose any information relating to the representation of a client of the former employer; and (2) that the employee should not work on any matter on which the employee worked for the prior employer or respecting which the employee has information relating to the representation of the client of the former employer. When the new firm becomes aware of such matters, the employing firm must also take reasonable steps to ensure that the employee takes no action and does no work in relation to matters on which the nonlawyer worked in the prior employment, absent client consent after consultation (footnotes omitted).”
That opinion also provides the following guidance to the firm that the paralegal is leaving:
Under Model Rule 5.3, lawyers have a duty to make reasonable efforts to ensure that nonlawyers do not disclose information relating to the representation of the lawyers' clients while in the lawyer's employ and afterwards. On the facts presented to the Committee here, once the lawyer learns that the paralegal has joined the opposing law firm, the lawyer should consider advising the employing firm that the paralegal must be isolated from participating in the matter and from revealing any information relating to the representation of the lawyer's client. If not satisfied that the employing firm has taken adequate measures to prevent participation and disclosures, the lawyer should consider filing a motion in the lawsuit to disqualify the employing law firm from continuing to represent the opponent.
For guidance as to appropriate screening measures, see SCR 20:1.0(n).
In Case You Missed It: Read Past Ethical Dilemmas
Ethical Dilemmas appears monthly in InsideTrack. Check out these topics from recent issues:
Lawyer-Client Privilege and Disclosure Exceptions, Aug. 17, 2016
Does a lawyer’s disclosure of information protected by SCR 20:1.6 (Confidentiality) pursuant to one of the permissive disclosure exceptions found in SCR 20:1.6(c) waive lawyer-client privilege with respect to that information?
Must I Reveal Departed Lawyer’s New Location When Clients Ask?, June 15, 2016
It happens quite often: A lawyer leaves a firm to join another firm. If a former client calls asking for the lawyer who has left for another firm, what’s the appropriate response?
For more, search “ethical dilemmas” on WisBar.org.
