If a lawyer's nonlawyer staff member discloses a client's confidences to outsiders, can the lawyer or the firm's partners be disciplined for it?

Plain-English summary

Bar Counsel asked about a partner (Attorney A) whose secretary (Z) became privy to a client's confidences while preparing documents and then shared that confidential information with persons outside the firm. The question was whether Z's disclosure subjects Attorney A or her partners to discipline under the Bar Rules.

The Commission explained that discipline runs against lawyers, not their employees, so an employee's breach does not necessarily subject the lawyer to discipline. Rule 3.6(h)(2) requires a lawyer to exercise reasonable care to prevent employees and others whose services the lawyer uses from improperly disclosing or using a client's confidences or secrets. The Commission read that rule to impose a responsibility to adequately train, monitor, and discipline nonprofessional staff to guard against breaches. A failure to take reasonable steps to provide adequate training, monitor performance, and apply discipline to enforce ethical standards is a proper ground for concluding the lawyer violated Rule 3.6(h)(2) and for attributing the employee's breach to the lawyer and to the firm members with supervisory responsibility; to hold otherwise, the Commission said, would "cut a great roadway through the Rule." On the facts presented, however, there was no suggestion that Attorney A failed to exercise reasonable care to prevent Z's improper disclosure.

Currency note

This opinion was issued in 1993, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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 Treat this page as historical context, not current guidance.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 lawyer automatically disciplined when staff leaks a client's confidences?

A: The opinion concluded no. Discipline runs against lawyers, not employees, and an employee's breach does not necessarily subject the lawyer to discipline.

Q: When would the lawyer or the firm's partners be disciplined for the breach?

A: The opinion held that a failure to exercise reasonable care, that is, to adequately train, monitor, and discipline staff under Rule 3.6(h)(2), is a proper ground for discipline and for attributing the employee's breach to the lawyer and to supervising firm members.

Q: Was Attorney A subject to discipline on these facts?

A: The opinion found no suggestion on the stated facts that Attorney A failed to exercise reasonable care to prevent the secretary's improper disclosure.

Background and rules framework

The opinion interprets Maine Bar Rule 3.6(h)(2), which requires a lawyer to exercise reasonable care to prevent employees and others whose services the lawyer uses from improperly disclosing or using a client's confidences or secrets. This corresponds to ABA Model Rule 5.3 (responsibilities regarding nonlawyer assistants) and Model Rule 1.6 (confidentiality of information).

Citations and references

Rules of Professional Conduct:

• Model Rule 5.3 (responsibilities regarding nonlawyer assistants); Model Rule 1.6 (confidentiality)
• Maine Bar Rule 3.6(h)(2)

See also

• Maine Ethics Op. 186: Screening Nonlawyer Staff to Avoid Conflict
• Maine Ethics Op. 194: Confidential Firm Data Held Electronically
• ABA Formal Op. 08-451: Outsourcing Legal and Nonlegal Services

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89828

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: September 21, 1993

Bar Counsel has asked the Commission to render an opinion with respect to the following factual situation:

FACTS

Attorney A is a partner in the firm of A, B, C, & D. The firm employs various clerical help in connection with its practice of law. In connection with the preparation of some documents for Attorney A on behalf of Client W, A's secretary Z becomes privy to certain confidences of W. Z proceeds to share confidential information with persons outside the firm.

QUESTION

Does Z's disclosure of confidential information subject A or her partners to discipline for violations of the Bar Rules?

DISCUSSION

The imposition of discipline for violations of the Bar Rules is necessarily a sanction against lawyers, and not their employees. However, a breach by A's employee of the lawyer's obligation to maintain confidences does not necessarily subject A to discipline under the Bar Rules. Rule 3.6(h)(2) requires a lawyer to:

. . . exercise reasonable care to prevent . . . employees . . . and others whose services are utilized by the lawyer from improperly disclosing or using confidences or secrets of a client.

Rule 3.6(h)(2) makes clear that lawyers have a responsibility to adequately train, monitor and discipline their non-professional staff in such a manner as to guard against breaches by non-lawyer staff. Failure to take reasonable steps to provide adequate training, to monitor performance and to apply discipline for the purpose of enforcing adherence to ethical standards is a proper grounds for concluding that the lawyer has violated Rule 3.6(h)(2) and for attributing the employee's breach of these standards to the attorney and to those members of the firm who have supervisory responsibility for the employee. To hold otherwise would be to cut a great roadway through the Rule. Upon the facts set forth in the inquiry, there is no suggestion that Attorney A failed to exercise reasonable care to prevent improper disclosure by secretary Z.