When a paralegal leaves one firm and joins the opposing firm in pending cases, is the hiring firm disqualified by a conflict of interest?

Plain-English summary

The Committee considered whether a hiring firm, which is opposing counsel in pending cases, has a conflict when it hires a paralegal who worked on those cases at the former firm and is known to have done so. It answered "Qualified yes." Reading the Code's Preliminary Statement, the opinion explained that the Canons, Ethical Considerations, and Disciplinary Rules cannot apply directly to non-lawyers, so the imputation rule of DR 5-105(D), which makes a lawyer's conflict the firm's conflict, does not run through a paralegal. Citing Vermont Opinion 78-2, it noted reasons not to impute paralegal conflicts: paralegals are hard to distinguish from other staff, imputation would limit their job mobility, and there is no compelling appearance of impropriety; it also noted the contrary view in Vermont Opinion 79-28.

Even without imputation, the opinion found grounds for possible disqualification in the lawyers' own duties. DR 4-101(D) requires a lawyer to use reasonable care to prevent employees from disclosing or using client confidences, and Kentucky Supreme Court Rule 3.700 Sub-Rule 4 requires a lawyer to instruct a paralegal to preserve client confidences and to exercise care that the paralegal does so. From these the opinion derived a list of steps for the former firm, including instructing the departing paralegal not to disclose confidences, informing the hiring firm, requesting that the paralegal be walled off from the case, requesting written assurances, advising affected clients, and moving to disqualify if the client requests. It stressed that the hiring firm is not required to preserve another lawyer's clients' confidences as a matter of duty, because there is no attorney-client relationship; but under Canon 9's duty to avoid even the appearance of impropriety, the hiring firm must comply with the former firm's requests, and if it refuses it may be disqualified on motion after a hearing on whether confidences have been or are likely to be disclosed, citing Summit v. Mudd.

Currency note

This opinion was issued in 1985 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Is a hiring firm automatically disqualified when it hires the opposing side's former paralegal?

A: No. The opinion concluded a paralegal's prior work is not automatically imputed to the hiring firm under DR 5-105(D), because that imputation rule applies to lawyers, not paralegals.

Q: What must the hiring firm do to avoid disqualification?

A: The opinion concluded that, to dispel the appearance of impropriety under Canon 9, the hiring firm must comply with the former firm's confidentiality requests, such as walling the paralegal off from the case and giving written assurances.

Q: What happens if the hiring firm refuses those requests?

A: The opinion said the hiring firm may be disqualified on the former firm's motion, after a hearing on whether confidences of the former firm's clients have been or are likely to be disclosed.

Background and rules framework

The opinion applied the former Code's confidentiality and imputation provisions, DR 4-101(D) and DR 5-105(D), together with Canon 9's appearance-of-impropriety principle and Kentucky Supreme Court Rule 3.700 Sub-Rule 4 on supervising paralegals. The modern analogs are Model Rule 1.10 (imputation of conflicts), Model Rule 5.3 (responsibilities regarding nonlawyer assistance), and Model Rule 1.6 (confidentiality); current practice generally allows screening of a migrating nonlawyer. The analysis turned on protecting client confidences rather than mechanical imputation.

Citations and references

Rules of Professional Conduct:

• DR 4-101(D); DR 5-105(D); DR 1-102(A)(3); DR 7-107(J); EC 4-1, 4-2, 4-5; Kentucky SCR 3.700 Sub-Rule 4 (former Code and supervision rule)
• MR 1.10 (imputation); MR 5.3 (nonlawyer assistants); MR 1.6 (confidentiality)

Cases:

• Summit v. Mudd, 679 S.W.2d 225 (Ky. 1984), disqualification on disclosure of confidences

Other opinions cited:

• Philadelphia Ops. 80-77 and 80-199 (1980); Vermont Ops. 78-2 (1978) and 79-28 (1979)

See also

• KBA Ethics Op. E-336: Suspended Lawyer Serving as a Paralegal
• KBA Ethics Op. E-303: Billing Paralegal and Law-Clerk Time

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-308.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-308
Issued: September 1985

This opinion was decided under the Code of Professional Responsibility, which was in
effect from 1971 to 1990. Lawyers should consult the current version of the Rules of
Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org),
before relying on this opinion.

Question:

If a paralegal leaves a law firm (the "former firm") and is hired by another law firm (the
"hiring firm"), which is the opposing counsel in several cases, does the hiring firm have a
conflict of interest?

Answer:

Qualified yes.

References:

SCR 3.700 Sub-Rule 4; Code of Professional Responsibility (1969), Preamble;
Disciplinary Rules 1-102(A)(3), 4-101(D), 5-105(D), and 7-107(J); Ethical
Considerations 4-1, 4-2 and 4-5; Philadelphia Opinion 80-77 (1980); Philadelphia
Opinion 80-199 (198O); Vermont Opinion 79-28 (1979) (MARU 12841); Vermont
Opinion 78-2 (1978) (MARU 12822)
OPINION

This opinion assumes that: (1) the hiring firm is opposing counsel in ongoing litigation; (2) the
paralegal worked on the case while employed by the former firm; and (3) the hiring firm knows that the
paralegal formerly worked on the case.
The Preliminary Statement to the Code of Professional Responsibility states:
Obviously the Canons, Ethical Considerations, and Disciplinary Rules cannot
apply to non-lawyers; 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 non-professional 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 a client.
This statement implies that no conflict of interest can be imputed to the hiring firm. Such
conflicts are normally imputed under DR 5-105(D), which requires the partners and associates of a
"lawyer" to withdraw from or decline employment if the lawyer must decline it or withdraw under DR
5-105. Since the paralegal is not subject to DR 5-105(D), he or she cannot have a conflict of interest
which can be imputed to the hiring firm. See Vermont Opinion 78-2 (stating that conflict-of-interest
rules should not apply to the hiring of paralegals because of the foregoing reason and because (i) it is
difficult to distinguish paralegals from other office staff, (ii) paralegals' job opportunities and mobility
would be limited, and (iii) there is no compelling appearance of impropriety). But see Vermont
Opinion 79-28 (stating that there is an appearance of impropriety, but declining to state that there is a
conflict of interest or that the hiring firm must withdraw).
Despite the foregoing, lawyers have duties regarding the employment of paralegals which can
provide a basis for disqualification in the present case. DR 4-101(D) requires a lawyer to exercise
reasonable care to prevent employees from disclosing or using confidences or secrets of a client. In
addition, Kentucky Supreme Court Rule 3.700 Sub-Rule 4 states: "A lawyer shall instruct the paralegal
employee to preserve the confidences and secrets of a client and shall exercise care that the paralegal
does so." Together these rules require that the former firm: (1) instruct the paralegal not to disclose the
client's confidences and secrets after leaving the firm; (2) inform the hiring firm that the paralegal has
been so instructed; (3) request that the paralegal not be permitted to work on or discuss the case; (4)
request that the hiring firm instruct the paralegal not to disclose confidences or secrets of the former
firm's clients; (5) request that the hiring firm inform the former firm if the paralegal discloses
confidences or secrets of the former firm's client; (6) request that the hiring firm withdraw from the case
if the paralegal discloses confidences or secrets of the former firm's clients; (7) request written
assurances from the hiring firm that it will comply with the former firm's requests; (8) advise the clients
of the paralegal's change in employment; and (9) move to disqualify the hiring firm if the client so
requests.
DR 4-101(D) and Kentucky Supreme Court Rule 3.700 Sub Rule 4 do not require the hiring firm
to comply with the former firm's requests. To interpret them otherwise would impose upon lawyers a
duty to preserve the confidences and secrets of other lawyers' clients. But since there is no
attorney/client relationship in such cases, there can be no such duty.
Nevertheless, under Canon 9 the hiring firm has a duty to avoid even the appearance of
impropriety. When a paralegal joins the opposing firm in a case on which the paralegal formerly
worked, there is a possibility of an appearance of impropriety. The hiring firm is presumed to know of
the paralegal's involvement in the case, and thus it may appear that the paralegal has been hired
because of his or her involvement in the case. To mitigate this possible appearance of impropriety, the
hiring firm must comply with the former firm's requests as set forth above. If the hiring firm refuses to
comply with any of these requests, then it may be disqualified upon the former firm's motion and after
a hearing to determine whether there has been or is likely to be any disclosure of confidences or secret
of the former firm's clients. See Summit v. Mudd, 679 S.W.2d 225 (Ky. 1984).

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar
Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The
Rule provides that formal opinions are advisory only.