In Kentucky, may two firms or office-sharing lawyers who often represent adverse clients share the same legal secretary?

Plain-English summary

The Committee addressed whether unrelated lawyers or firms may employ the same legal secretary. Although the rules do not apply directly to nonlawyers, KRPC 5.3 requires lawyers to take reasonable steps to ensure that nonlawyer conduct is compatible with the lawyer's professional obligations. The Committee identified two related duties: protecting client confidences under KRPC 1.6, and the duty of loyalty reflected in the bar on using a client's or former client's information to the client's disadvantage (KRPC 1.8(b), 1.9(b)). It concluded that KRPC 5.3 obligates the lawyers to guard against both improper disclosure and improper use of confidential information by the shared staffer, which requires more than merely instructing the secretary.

On Question 1 (two firms that often represent adverse interests), the Committee answered a qualified no. The firms would have to coordinate work assignments so the secretary never handled conflicting matters, and the Committee doubted it is practical to monitor conflicts between two unaffiliated firms on a continuing basis. Because preserving confidentiality is a question of access to information (Comment 11 to KRPC 1.10), both firms would also have to prevent the secretary's access to confidential information of adverse clients, and continuous screening of a secretary working for two firms was unrealistic; the firms also faced the separate (non-ethics) risk of court disqualification.

On Question 2 (office-sharers who often represent adverse interests), the Committee answered a qualified no, depending on the facts; the problems mirror Question 1, and most ethics committees strongly advise against sharing nonlawyer staff with access to sensitive material. The Committee added that shared use of a secretary and shared access to files weigh heavily toward treating office-sharers as a single firm for conflict purposes (Comment 1 to KRPC 1.10). On Question 3 (firms or office-sharers that do not represent adverse interests), the Committee answered a qualified yes, noting the same concerns apply but that sharing may be acceptable where the practices are distinct enough that conflicts rarely arise; the same principles apply to other nonlawyer employees.

Currency note

This opinion was issued in 1998 and predates the Kentucky Supreme Court's substantial 2009 revisions to the Rules of Professional Conduct (SCR 3.130). The Kentucky Bar Association notes that the rules are amended periodically and that lawyers should consult the current version before relying on this opinion. 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: Could two Kentucky firms that often oppose each other share a legal secretary?

A: Per the opinion, generally no (a qualified no). The Committee doubted the firms could realistically monitor conflicts and prevent the shared secretary's access to confidential information of adverse clients.

Q: What rule governs the shared nonlawyer staffer?

A: The opinion grounded the analysis in KRPC 5.3, which requires lawyers to take reasonable steps to ensure nonlawyer conduct is compatible with the lawyer's duties, including protecting confidences under KRPC 1.6.

Q: Could office-sharers who do not represent adverse interests share a secretary?

A: Per the opinion, yes with qualifications (a qualified yes), where the practices are distinct enough that conflicts rarely arise; the Committee said the opinion should not be read to bar sharing in every case.

Q: Did sharing a secretary affect whether office-sharers are treated as one firm?

A: The opinion concluded it did. Shared use of a secretary and shared file access weigh heavily toward treating office-sharers as a single firm for conflict purposes under KRPC 1.10.

Background and rules framework

The opinion interprets KRPC 5.3 (responsibilities regarding nonlawyer assistants; the Model Rule 5.3 counterpart), KRPC 1.6 (confidentiality; Model Rule 1.6), the use-of-information bars in KRPC 1.8(b) and 1.9(b) (Model Rules 1.8, 1.9), and KRPC 1.10 (imputation and when office-sharers are treated as a firm; Model Rule 1.10).

Citations and references

Rules of Professional Conduct:

• MR 5.3 / KRPC 5.3 (supervision of nonlawyer assistants)
• MR 1.6 / KRPC 1.6 (confidentiality)
• MR 1.9 / KRPC 1.8(b), 1.9(b) (use of client and former-client information)
• MR 1.10 / KRPC 1.10 (imputation; office-sharers as a firm)

Cases:

• Oliver v. Kentucky Bar Association, 779 S.W.2d 212 (Ky. 1989), protection of client information
• Ciaffone v. Eighth Judicial Dist. Ct., 945 P.2d 950 (Nev. 1997), disqualification from shared nonlawyer staff

Other opinions cited:

• ABA Formal Op. 88-356 (1988); ABA Informal Op. 88-1526 (1988); KBA E-308 (1985); Utah Op. 125 (1994); Oregon Op. 1991-50 (1991)

See also

• KBA Ethics Op. E-418: Imputed Disqualification in Office-Sharing Arrangements
• KBA Ethics Op. E-417: Sharing Office Space With Nonlawyers

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-406.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-406
Issued: November 20, 1998

The Rules of Professional Conduct are amended periodically. Lawyers should consult the current version of the rules and comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question 1:

May two law firms that often represent clients with adverse interests employ the same legal secretary?

Answer:

Qualified No.

Question 2:

May two or more lawyers who share office space and often represent clients with adverse interests, share a legal secretary?

Answer:

Qualified No.

Question 3: May two law firms or lawyers sharing office space share a legal secretary when the law firms or office-sharing lawyer do not represent clients with adverse interests? Answer:

Qualified Yes.

References:: KRPC 1.6; 1.7; 1.8;1.9; 1.10; 5.3; Oliver v. KBA , 779 S.W.2d 212 (KY 1989); Ciaffone v. Eighth Judicial Dist. Ct., 945 P.2d 950 (Nev. 1997); ABA Formal Op. 88-356 (1988); ABA Informal Op. 88-1526 (1988); KBA E-308 (1985); Utah Op. 125 (1994); Oregon Ethics Op. 1991-50 (1991); ABA/BNA LMPC 91:606.

OPINION
These inquiries ask whether it is ethical for two or more unrelated lawyers or firms to employ the same legal secretary. While the Kentucky Rules of Professional Conduct do not apply directly to nonlawyers, Rule 5.3 requires partners and supervising lawyers to take reasonable steps to ensure that nonlawyer “conduct is compatible with the professional obligations of the lawyer.” KRPC 5.3. Two separate but related obligations are implicated by these inquiries. The first is the duty to preserve client confidences. Rule 1.6 provides, in part, “[a] lawyer shall not reveal information relating to the representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized to carry out the representation....” KRPC 1.6.

While Rule 1.6 clearly authorizes disclosure of confidential information to a legal secretary in furtherance of the representation, Rule 5.3 obligates the lawyer to take appropriate action to protect against improper disclosure by the secretary or other nonlawyer assistant. See KRPC 5.3, Comment. Closely related to the duty to protect against disclosure of client confidences is the duty of loyalty, which is codified in the conflict of interest rules. KRPC 1.7 - 1.12. The duty of loyalty is often expressed in terms of the lawyer’s duty to exercise independent professional judgment in the representation of the client. In this regard, the conflict rules have no direct consequence for the legal secretary or other nonlawyer employers. But the concept of loyalty has a much broader meaning, which is reflected in the rules prohibiting a lawyer from using “information relating to the representation of a client [or former client] to the disadvantage of the client....” KRPC 1.8(b) and 1.9(b). The lawyer’s duty to protect against improper use of client information does have consequences for the legal secretary. Thus, analysis of these inquires begins with the premise that Rule 5.3 obligates the lawyer to protect against both improper disclosure and improper use of confidential information. The threshold question is how does the lawyer go about satisfying his or her obligations under Rule 5.3? The Comment to Rule 5.3 starts by restating the obvious: “[a] lawyer should give ... assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to the representation of the client....” It is clear that the lawyer must do more than merely “instruct” the legal secretary about his or her ethical obligations. Legal secretaries and other nonlawyer employees are not trained as lawyers and are not subject to discipline. The burden falls upon all of the lawyers, whether they are lawyers in formal law firms or office-sharers, to evaluate their respective practices and the nature of the work to be assigned to the legal secretary to determine if it is possible to develop policies and procedures that will adequately protect client interests. In analyzing these questions, special attention must be given to both the assignment of work and access to client files. Question 1 deals with the firms that often represent adverse interests. In order to protect client confidences, the two firms would have to work together to develop policies that ensure that legal secretary would not be assigned work involving conflicting interests. The Committee has serious doubts as to whether it is practical, or even possible, to monitor conflicts between two unaffiliated firms on a continuing basis. This is not to say that a legal secretary can never work for two firms at the same time. There may be situations where the nature of the work done by each is so distinct that conflicts would never arise, but that is not the case presented by Question 1. Protecting client confidences requires more than coordinating and monitoring work assignments. As Comment 11 to Rule 1.10 correctly notes, “[p]reserving confidentiality is a question of access to information” (emphasis added). Both firms would have to take special precautions to prevent access to and the sharing of confidential information about clients who have conflicting interests. See generally, ABA Inf. Op. 88-1526 (1988); ABA Formal Op. 88356; KBA E-308; Oliver v. KBA, Ky., 779 S.W.2d 212 (1989). While recognizing that screening has been employed to avoid disqualification when a secretary moves from one firm to

another, the practicality of screening when the secretary has a continuing relationship with two firms is doubtful. Just as with work assignments, both firms would have to evaluate their client base on a daily basis to identify those files from which the legal secretary should be screened. We believe this is unrealistic in most, if not all, situations. Finally, the law firms must consider also the threat of law firm disqualification by a court of law as a result of simultaneous employment of the legal secretary, though court disqualification is not a matter of ethics. See, e.g., Ciaffone v. Eight Judicial Dist. Ct., 945 P.2d 950 (Nev. 1997). Question 2 asks whether office-sharing lawyers can share a legal secretary if the officesharers often represent adverse interests. Whether such an arrangement is permissible will depend on the particular facts of each individual situation. The problems presented by officesharers who represent conflicting interests are similar to those described above and the duty to protect against improper disclosure and use is the same. Thus, it is not surprising that most ethics committees that have considered this issue strongly advise against sharing legal secretaries and other nonlawyer employees who have access to sensitive material. See generally, ABA/BNA LMPC sec 91:601, 606; Utah Ethics Op 93-99 (1994); Oregon Ethics Op. 1991-50 (1991). The Committee notes that if the office-sharers conduct their practice as a firm, they will be treated as a firm for conflict of interest purposes. KRPC 1.10, Comment 1. Shared use of a secretary, along with access to client files, are two factors that would weigh heavily in favor of treating office-sharers as a firm. Question 3 deals with the sharing of a legal secretary by office-sharing attorneys and law firms when the firms or office-sharers do not represent adverse interests. The Committee notes that the interests and concerns discussed above are equally relevant in any evaluation of sharing a legal secretary. There may be situations in which the nature of the work done by each law firm is so distinct that conflicts rarely, if ever, arise and thus can be detected and dealt with in accord with the above discussion. Likewise, the Committee recognizes that it may be possible to structure office-sharing arrangements so that the office-sharers do not represent conflicting interests. This opinion should not be read to suggest that law firms or office-sharers can never share secretaries. The issues to which this opinion is addressed involve a legal secretary. The same principles would apply to other nonlawyer employees of attorneys.
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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.