Can a paralegal who changes firms write to the old firm's clients to announce the move and solicit their business?

Plain-English summary

The inquiry asked whether a nonlawyer employee who recently changed law firms may write to clients of the former employer with whom the nonlawyer had established relationships, telling them the nonlawyer now works at a new firm that handles the same kinds of matters.

The opinion starts from the principle that the Rules govern lawyers, not nonlawyers directly, but a lawyer with direct supervisory authority over a nonlawyer must make reasonable efforts to ensure the nonlawyer's conduct is compatible with the lawyer's own obligations, and may be held responsible for a nonlawyer's conduct that would violate the Rules if done by a lawyer (Rule 5.3(c)). Protecting client confidences is among a lawyer's most significant duties (Rules 1.6 and 1.9), and Comment [1] to Rule 5.3 requires lawyers to instruct and supervise nonlawyer employees about not disclosing information relating to a representation.

The opinion treats a client's identity, and the fact that the client previously retained a lawyer for a particular purpose, as confidential information. Although Rules 1.6 and 1.9 speak to a lawyer's duty to the lawyer's own current and former clients, the opinion concludes that the deference the profession gives to confidentiality means a lawyer has a professional obligation not to encourage or allow a nonlawyer employee to disclose a previous employer's client confidences for purposes of solicitation. The opinion expressly declines to address the separate legal question of whether contacting a former employer's client constitutes interference with a contract.

In practice

Under the North Carolina rules as they stood at the time, the opinion places the burden on the supervising lawyer at the new firm: that lawyer may not encourage or permit a nonlawyer employee to use confidential client information from the former employer, such as the identities of clients the nonlawyer worked with, to solicit those clients (Rule 5.3(c); Rule 5.3 cmt. [1]). The opinion limits itself to the ethics question and does not opine on any contract or tortious-interference issue.

Common questions

Q: Can a paralegal who switches firms contact the old firm's clients about the move?

A: The opinion concludes a lawyer may not encourage or allow a nonlawyer to disclose the former employer's confidential client information, including client identities, for solicitation; the supervising lawyer is responsible under Rule 5.3(c).

Q: Is a client's identity confidential?

A: Per the opinion, yes. It treats a client's identity, and the fact the client retained a lawyer for a particular purpose, as confidential information.

Q: Who is responsible if the nonlawyer does it anyway?

A: The supervising lawyer. Rule 5.3(c) and Comment [1] require the lawyer to instruct and supervise nonlawyer employees, and the lawyer may be held responsible for the nonlawyer's conduct.

Background and rules framework

The opinion interprets North Carolina Rules of Professional Conduct 5.3 (responsibilities regarding nonlawyer assistants, including Comment [1] and Rule 5.3(c)) and Rules 1.6 and 1.9 (the duty of confidentiality to current and former clients). These correspond to ABA Model Rules 5.3, 1.6, and 1.9. The opinion declines to reach the non-ethics question of interference with a contract.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / NC Rule 1.6 (confidentiality)
• Model Rule 1.9 / NC Rule 1.9 (duties to former clients)
• Model Rule 5.3 / NC Rule 5.3(c) (responsibility for nonlawyer assistants)

See also

• ABA Formal Op. 506: Responsibilities Regarding Nonlawyer Assistants
• ABA Formal Op. 489: Notice When Lawyers Change Firms

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2009-formal-ethics-opinion-3/

Original opinion text

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

Inquiry:

May a nonlawyer employee of a law firm, who recently changed law firms, write to clients of his/her former employer with whom the nonlawyer had established relationships to inform the clients that the nonlawyer is employed with a new law firm and that the new law firm handles the same type of legal matters?

Opinion:

The Rules of Professional Conduct govern the actions of lawyers, rather than nonlawyers. However, a lawyer having direct supervisory authority over a nonlawyer employee has a duty to make reasonable efforts to ensure that the nonlawyer's conduct is compatible with the professional obligations of the lawyer. Furthermore, the lawyer may be held responsible for conduct of a nonlawyer that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer. See Rule 5.3(c).

The protection of client confidences is one of the most significant responsibilities imposed on a lawyer. See Rule 1.6, 1.9. Comment [1] to Rule 5.3 provides that a lawyer must give nonlawyer employees appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of a client. A client's identity, and the fact that the client had previously retained a lawyer for a particular purpose, is confidential information. Rule 1.6 and Rule 1.9 refer to the duty of confidentiality that a lawyer owes to his own current and former clients. However, the deference that the legal profession gives to a lawyer's duty of confidentiality would mandate that a lawyer has a professional obligation not to encourage or allow a nonlawyer employee to disclose confidences of a previous employer's clients for purposes of solicitation.

No opinion is expressed on the legal question of whether a communication with a client of the nonlawyer's former employer constitutes interference with a contract.