If a paralegal who worked on one side of a case leaves and joins the firm representing the other side, must the new firm withdraw, or may it screen the paralegal?

Plain-English summary

A paralegal worked for Attorney A, mainly on personal-injury and real estate matters but occasionally on domestic actions. While employed there, Attorney A represented Client A in a domestic matter, and the paralegal had at least some exposure to that case, though the extent was disputed: the paralegal denied regular work or knowledge of specific facts, while Attorney A contended she was substantially involved and privy to confidential information. After her employment ended, the paralegal went to work for Attorney B, who represented Client B, the opposing party in the same domestic action. Attorney A asked Attorney B to withdraw because of the paralegal's prior involvement. The inquiry asked whether Attorney B had to withdraw.

The opinion concluded that Attorney B may continue to represent Client B and may continue to employ the paralegal. It reasoned that the imputed-disqualification rules in Rule 5.11 do not apply to nonlawyers, so the paralegal's move did not disqualify the new firm. The opinion held, however, that Attorney B must take extreme care to ensure the paralegal is totally screened from participation in the case, even if her involvement while employed by Attorney A was negligible, citing RPC 74. It tied that screening requirement to the lawyer's duty under Rule 3.3(b) to make reasonable efforts to ensure that the conduct of a supervised nonlawyer is compatible with the lawyer's own professional obligations, including the duties to avoid conflicts of interest and to preserve the confidentiality of client information.

Currency note

This opinion was issued in 1994, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Does a paralegal switching to the opposing firm disqualify that firm?

A: No. The opinion concluded that the imputed-disqualification rules in Rule 5.11 do not apply to nonlawyers, so the new firm need not withdraw.

Q: Can the new firm keep employing the paralegal?

A: Yes. The opinion held the firm may continue to employ the paralegal, provided it screens her from the case.

Q: What must the new firm do to keep the paralegal?

A: Screen her completely. The opinion held the firm must take extreme care to ensure the paralegal is totally screened from participation in the case, even if her prior involvement was negligible, consistent with the supervision duty in Rule 3.3(b).

Background and rules framework

The opinion applied North Carolina's then-current Rule 5.11, the imputed-disqualification provision corresponding to Model Rule 1.10, holding it does not reach nonlawyers, and Rule 3.3(b), the nonlawyer-supervision provision corresponding to Model Rule 5.3, as the source of the screening obligation. It relied on its earlier opinion RPC 74 for the requirement that a migrating nonlawyer be screened from a matter she touched at her former firm.

Citations and references

Rules of Professional Conduct:

• MR 1.10 (imputation of conflicts; does not reach nonlawyers)
• MR 5.3 (responsibilities regarding nonlawyer assistants)
• North Carolina Rule 5.11; Rule 3.3(b)

Other opinions cited:

• North Carolina RPC 74 (screening a migrating nonlawyer)

See also

• NC Ethics Op. RPC 188: lawyer closing a deal his realtor spouse, who also paralegals, brokered
• NC Ethics Op. RPC 183: a legal assistant's role at a deposition

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-176/

Original opinion text

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

Inquiry:

Attorney A had two full-time staff members: a receptionist/secretary and a paralegal/secretary ("Paralegal"). Paralegal's normal duties included working on personal injury actions and real estate matters. On occasion, Paralegal helped with domestic actions. While Paralegal was employed by Attorney A, Attorney A represented Client A in a domestic matter. Paralegal denies working on the case on a regular basis while she was employed by Attorney A. Paralegal also denies having any knowledge of the specific facts of the case. Attorney A contends that Paralegal was substantially involved in assisting in the representation of Client A and was privy to confidential information regarding Client A. It is clear that Paralegal had some exposure to the case while employed by Attorney A.

After the employment of Paralegal was terminated by Attorney A, Paralegal went to work for Attorney B in another law firm. Attorney B represents Client B in the same domestic action in which Attorney A represents Client A.

Attorney A has requested that Attorney B withdraw from the representation of Client B because of Paralegal's prior involvement in the action. Should Attorney B withdraw from the representation of Client B?

Opinion:

No, Attorney B may continue to represent Client B in the case and may continue to employ Paralegal. The imputed disqualification rules contained in Rule 5.11 of the Rules of Professional Conduct do not apply to nonlawyers. However, Attorney B must take extreme care to ensure that Paralegal is totally screened from participation in the case even if Paralegal's involvement in the case while employed by Attorney A was negligible. See RPC 74. This requirement is consistent with a lawyer's duty, pursuant to Rule 3.3(b), to make reasonable efforts to ensure that the conduct of a nonlawyer over whom the lawyer has direct supervisory authority is compatible with the professional obligations of the lawyer including the obligation to avoid conflicts of interest and to preserve the confidentiality of client information.