When a paralegal or legal secretary leaves a firm to work for opposing counsel, what are the two firms' duties, and is the hiring firm disqualified?

Plain-English summary

The committee addressed how the conflict-of-interest and confidentiality rules apply when a nonlawyer employee (a paralegal, legal assistant, or legal secretary) "switches sides," moving to a firm that opposes the firm where the employee had worked on or been exposed to a matter. The committee began from the premise, drawn from DR 4-101(E) and DR 3-104(C) and the Code's Preamble, that nonlawyer employees necessarily share in confidential information and therefore share the lawyer's duty not to disclose or use it, and that lawyers must use care to see that their nonlawyer employees observe that shared duty.

The committee drew a line between lawyers and nonlawyers. Where a lawyer who switched sides would automatically disqualify the new firm, a nonlawyer who switched sides would not. The hiring firm is not disqualified, but both firms retain obligations: the former firm has a duty to admonish the departing employee not to reveal the former clients' confidences or secrets to the hiring firm, and the hiring firm has a corresponding duty not to seek or permit any such disclosure and not to use the information.

The committee added a second duty for the former firm. If the departing paralegal or legal assistant had a close relationship with a client, the former firm must advise that client of the employee's departure and new employment, because the client is entitled to be kept informed of significant developments in the representation.

Currency note

This opinion was issued in 1986, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Is a firm disqualified if it hires a paralegal who worked for the opposing firm?

A: The opinion concluded that, unlike hiring a lawyer who switched sides, hiring a nonlawyer who switched sides does not automatically disqualify the new firm.

Q: What must the hiring firm do?

A: The opinion concluded that the hiring firm has a duty not to seek or permit the employee to disclose the former firm's client confidences or secrets, and not to use that information.

Q: What must the firm the employee left do?

A: The opinion concluded the former firm must admonish the departing employee to preserve the clients' confidences and secrets, and, where the employee had a close relationship with a client, must advise that client of the employee's departure and new employment.

Background and rules framework

The opinion interprets the duty to supervise nonlawyer assistants and the duty of confidentiality. At the time it relied on CPR DR 4-101(E) (reasonable care to prevent employees from disclosing client confidences and secrets) and DR 3-104(C) (high standard of care to assure nonlawyer compliance with the Code), and pointed to the proposed Rules of Professional Conduct then under consideration, Rule 4-5.3 (Model Rule 5.3, responsibilities regarding nonlawyer assistants) and Rule 4-1.4 (Model Rule 1.4, communication with the client). The confidentiality obligation corresponds to Model Rule 1.6.

Citations and references

Rules of Professional Conduct:

• CPR Preamble; DR 3-104(C); DR 4-101(E)
• Proposed Fla. Rule 4-1.4 (Model Rule 1.4, communication); proposed Fla. Rule 4-5.3 (Model Rule 5.3, nonlawyer assistants)

Cases (added in the bar's later note to the opinion):

• Apopka v. All Corners, Inc., 701 So.2d 641 (Fla. 5th DCA 1997)
• Esquire Care, Inc. v. Maguire, 532 So.2d 740 (Fla. 2d DCA 1988)
• Koulisis v. Rivers, 730 So.2d 289 (Fla. 4th DCA 1999)
• Lackow v. Walter E. Heller & Co., 466 So.2d 1120 (Fla. 3d DCA 1985)

See also

• FL Bar Ethics Op. 86-4: Nonlawyer Employees on Letterhead
• FL Bar Ethics Op. 88-6: Nonlawyer Conducting Initial Client Interview
• FL Bar Ethics Op. 87-11: Nonlawyer Signing Pleadings and Notices

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-86-5/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-86-5-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 86-5
August 1, 1986
Advisory ethics opinions are not binding.

A law firm that hires a nonlawyer who was employed by an opposing law firm has a duty not to seek or permit disclosure by the employee of the confidences or secrets of the opposing firm's clients. The firm from which the employee departs has a corresponding duty to admonish the employee that he or she is obligated to preserve the confidences and secrets of the clients.

Note: While opinion 86-5 permits screening of nonlawyer employees to avoid conflicts of interest, it does not purport to address the possibility of disqualification in litigation. See Apopka v. All Corners, Inc., 701 So.2d 641 (Fla. 5th DCA 1997); Esquire Care, Inc. v. Maguire, 532 So.2d 740 (Fla. 2d DCA 1988). But see Koulisis v. Rivers, 730 So.2d 289 (Fla. 4th DCA 1999); Lackow v. Walter E. Heller & Co., 466 So.2d 1120 (Fla. 3d DCA 1985).

CPR: Preamble, DR 3-104(C); DR 4-101(E)
RPC: Rule 4-1.4; Rule 4-5.3

The Committee has been asked to consider how the conflict-of-interest and confidentiality rules apply when nonlawyer employees move from one law firm to another. The issue usually arises when a paralegal, legal assistant or legal secretary "switches sides" — that is, moves from one firm to a second firm that is opposing counsel in some matter after having worked on the matter for the first firm or having otherwise been exposed to confidences and secrets of the first firm's client.

DR 4-101(E) requires a lawyer to "exercise reasonable care to prevent his employees ... from disclosing or using confidences or secrets of a client." DR 3-104(C) requires a lawyer or law firm to "exercise a high standard of care to assure compliance by the nonlawyer personnel with the applicable provisions of the Code of Professional Responsibility." See Proposed Rule of Professional Conduct 4-5.3 ("Responsibilities Regarding Nonlawyer Assistants"). The Preamble to the Code of Professional Responsibility recognizes:

Obviously the canons, ethical considerations, and disciplinary rules cannot apply to nonlawyers; however, they do define the type of ethical conduct that the public has a right to expect not only of lawyers but also of their nonprofessional employees and associates in all matters pertaining to professional employment. A lawyer should ultimately be responsible for the conduct of his employees and associates in the course of the professional representation of the client.

The Code does not directly regulate the conduct of nonlawyer employees of a law firm. The Code recognizes, however, that nonlawyer employees necessarily share in confidential and secret information and therefore necessarily share the attorney's ethical obligation not to disclose or use such information without the client's consent. For that reason, lawyers are required to use care to ensure that their nonlawyer employees appreciate and conduct themselves in accordance with the shared duty of confidentiality.

Thus, while the new employer of an attorney who switched sides would be disqualified automatically from representation in the matter, the new employer of a nonlawyer employee who switched sides would not be disqualified. However, both the hiring firm and the former firm still must meet their obligations under DR 4-101(E) and DR 3-104(C). That is, the former firm has a duty to admonish the departing employee that the employee has an ethical or moral obligation not to reveal confidences or secrets of any client to the hiring firm. The hiring firm has a corresponding duty not to seek or permit a disclosure of confidences or secrets by the employee and not to use such information.

The former firm has a second duty when a paralegal or legal assistant switches sides. If the employee had a close relationship with the client, the former firm must advise the client of the employee's departure and new employment. The client is entitled to be kept informed of significant developments in the representation. Proposed Rule of Professional Conduct 4-1.4 ("Communication").