What must a California firm do before and after hiring a nonlawyer employee (law clerk, secretary, investigator) who may have been exposed to confidential information about an adverse party at a prior employer?

Plain-English summary

The opinion considers a Second Firm that hires two summer law clerks who had worked the prior summer at First Firm, opposing counsel in a current Second Firm matter. Law Clerk A worked 100 hours on the very film project at issue, including sitting in on a client meeting and reviewing confidential memos. Law Clerk B did 10 hours of generic summary-judgment research billed to Studio but did no work on the film project.

The committee identifies three obligations of the hiring firm. First, before hiring, the firm must conduct a reasonable investigation of the candidate's prior exposure, focused on whether the candidate's former firm is or has been opposing counsel in any current Second Firm matters. The investigation must not probe the substance of confidential information; that probe would itself violate the duties owed to the former firm's clients.

Second, after hiring, the firm must instruct the nonlawyer about confidentiality duties under Bus. & Prof. Code section 6068(e) and the rules of professional conduct.

Third, where the nonlawyer holds confidential information materially related to a Second Firm matter, the firm must timely screen the nonlawyer from involvement in that matter, unless the former employer or affected client consents. The committee draws the elements of an adequate screen from Adams v. Aerojet-General Corp. (2001) 86 Cal.App.4th 1324, In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, and Kirk v. First American Title Insurance Co. (2010) 183 Cal.App.4th 776: written acknowledgment, physical/electronic separation, no fee-sharing tied to the screened matter, and prompt implementation.

Applied to the hypothetical: Law Clerk A must be screened from the film-project matter; Law Clerk B's generic summary-judgment work is not "material" to the litigation and does not require screening, though general confidentiality duties still apply.

The opinion expressly excludes paralegals from its scope because paralegals are subject to the same confidentiality requirements as attorneys under Bus. & Prof. Code section 6453; paralegal screening follows the attorney rules.

In practice

The opinion holds that, under California's rules as they stood in 2011, a firm hiring a nonlawyer with prior-firm exposure must investigate before hiring without probing substance, instruct after hiring, and screen where the nonlawyer holds materially related confidential information. Consent of the former employer or affected client can replace the screen.

This opinion predates California's November 1, 2018 rule revisions and is framed under former Rules 2-100, 3-110, 3-310, and 3-500. The screening framework drawn from Adams and Kirk remains California's analytical baseline; current Rules 1.0.1, 1.6, and 1.10 address the underlying duties.

Common questions

Q: We are hiring a law clerk from a firm that is opposing counsel in a pending case. What do we have to do?

A: Per the opinion, before hiring, ask whether the candidate worked on matters where the former firm represented your adverse party, without asking what the candidate learned. After hiring, instruct on confidentiality and screen the new employee from your case if the candidate had material exposure.

Q: What counts as an adequate screen?

A: Per the opinion, drawing on Kirk and Adams, the screen should be timely implemented, in writing acknowledged by the screened employee, supported by physical or electronic separation from case materials, and excluded from any fee-sharing tied to the matter.

Q: Do paralegals count under this opinion?

A: The opinion expressly excludes paralegals because paralegals are subject to the same confidentiality duties as attorneys under Bus. & Prof. Code section 6453. The opinion's screening framework applies to nonlawyer staff who do not have paralegal status.

Q: What if the new hire only did generic research with no exposure to the substantive case?

A: Per the opinion's analysis of Law Clerk B, generic research that is not material to the specific litigation does not require screening, although the firm's general confidentiality instructions still apply.

Q: Can we ask the candidate what they learned at the prior firm?

A: No. The opinion is clear that the hiring firm "must not attempt to delve into the substance of any information the nonlawyer may have acquired." The investigation is limited to whether the candidate worked on related matters, not what they learned.

Background and rules framework

The opinion interprets former California Rule 3-310 (avoiding adverse interests), Rule 3-110 (competence), Rule 2-100 (communication with represented parties), and Rule 3-500 (duty to inform). The screening framework derives from California case law: Adams v. Aerojet-General Corp. (2001), In re Complex Asbestos Litigation (1991), and Kirk v. First American Title Insurance Co. (2010). The confidentiality baseline is Bus. & Prof. Code section 6068(e); paralegals are covered separately by section 6453.

Citations and references

Rules of Professional Conduct:

• Former California Rule 2-100 (communication with represented party)
• Former California Rule 3-110 (failing to act competently)
• Former California Rule 3-310 (avoiding adverse interests)
• Former California Rule 3-500 (communication)

Statutes:

• Bus. & Prof. Code section 6068(e) (preservation of client secrets)
• Bus. & Prof. Code section 6453 (paralegal confidentiality)

Cases:

• Adams v. Aerojet-General Corp., 86 Cal.App.4th 1324 (2001), nonlawyer screening
• In re Complex Asbestos Litigation, 232 Cal.App.3d 572 (1991), origins of California's nonlawyer-screen rule
• Kirk v. First American Title Insurance Co., 183 Cal.App.4th 776 (2010), modern screen elements
• Flatt v. Superior Ct., 9 Cal.4th 275 (Cal. 1994)
• H.F. Ahmanson & Co. v. Salomon Brothers, Inc., 229 Cal.App.3d 1445 (1991)
• Trousil v. State Bar, 38 Cal.3d 337 (Cal. 1985)
• Waysman v. State Bar, 41 Cal.3d 452 (Cal. 1986)

Other opinions cited:

• ABA Informal Opinion No. 88-1526 (1988)
• Florida Bar Ethics Opinion 86-5 (1986)
• Michigan Ethics Opinion RI-115 (1992)
• New York State Bar Opinion 774 (2004)

See also

• LACBA Opinion 529: Social Media Confidentiality and Pretexting
• No other sibling opinions yet indexed.

Source

• Landing page: https://lacba.org/?pg=ethics-opinions
• Original PDF: https://lacba.org/docDownload/2010578