Could a Nebraska firm hire a legal secretary who voluntarily left a competing firm?

Plain-English summary

A legal secretary left one of three firms in a small community and voluntarily sought work at a competitor. The committee found that the second firm could hire the secretary if the lawyers complied with the Code and had not solicited the employee away.

The hiring firm had to instruct the secretary about preserving all confidences learned at the former firm, impress that obligation on the employee, and take reasonable precautions against disclosure. The committee placed responsibility for the nonlawyer employee's conduct on the new employer and stated that the firm could not absolve itself of the duty to protect another lawyer's client confidences.

Nebraska Opinion 94-4 later limited Opinion 73-14. Based on later Nebraska Supreme Court decisions, Opinion 94-4 required a firm to avoid a matter adverse to a former firm's client when it was the same as or substantially related to work handled while the secretary was at the former firm, and it rejected screening as a cure under that later bright-line rule.

Currency note

The official archive flags this opinion as limited. Nebraska Opinion 94-4, issued in 1994, expressly limited Opinion 73-14 for same-or-substantially-related adverse matters involving lateral staff. Both opinions predate Nebraska's adoption of the 2005 Rules of Professional Conduct. Treat this page as historical context, not current guidance.

Common questions

Q: Did Opinion 73-14 categorically bar hiring a competitor's former secretary?

A: No. It allowed the hire if the secretary voluntarily sought the job and the new firm observed the stated confidentiality safeguards.

Q: What did the new firm have to tell the secretary?

A: The lawyers had to explain the obligation to preserve former-client confidences and the possibility of civil liability for improper disclosure.

Q: Who bore responsibility for protecting the former firm's client information?

A: The hiring lawyers did. The opinion said they could not absolve themselves of that obligation.

Q: How did Opinion 94-4 change the result?

A: It imposed firm disqualification in same-or-substantially-related adverse matters brought by lateral lawyers or staff and did not accept screening as a cure.

Background and rules framework

Opinion 73-14 relied on former Canon 1, EC 1-1, DR 4-101(D), and Canon 9. Its focus was the hiring firm's duty to prevent a nonlawyer employee from using or disclosing former-client information. Opinion 94-4 later added a matter-based disqualification rule.

Citations and references

Former Nebraska Code of Professional Responsibility:

• Canon 1 and EC 1-1
• DR 4-101(D)
• Canon 9

Cases:

• State ex rel. Nebraska State Bar Ass'n v. Richards, 165 Neb. 80, 84 N.W.2d 136 (1957)

Other opinions cited:

• Nebraska Ethics Advisory Opinion 94-4 (limiting this opinion)

See also

• Nebraska Ethics Op. 94-4: Lateral staff conflicts
• Nebraska Ethics Op. 89-2: Office-sharing conflict safeguards
• Nebraska Ethics Op. 06-05: Shared-server confidentiality

Source

• Landing page: Nebraska lawyer ethics opinions archive
• Original PDF: Nebraska Ethics Advisory Opinion 73-14
• Later opinion: Nebraska Ethics Advisory Opinion 94-4

Original opinion text

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

Nebraska Ethics Advisory Opinion for Lawyers No. 73-14

PROVIDED THAT ALL ETHICAL CONSIDERATIONS AND DISCIPLINARY RULES ARE MET AND COMPLIED WITH BY THE COMPETING LAW FIRM, IT IS NOT NECESSARILY UNETHICAL FOR IT, WITHOUT SOLICITATION ON ITS PART, TO EMPLOY A FORMER SECRETARY OF ANOTHER LAW FIRM WHO VOLUNTARILY SEEKS EMPLOYMENT WITH SUCH COMPETING LAW FIRM.

AUTHORITIES APPLICABLE

Canon I A lawyer should assist in maintaining the integrity and competence of the legal profession.

EC 101 Maintaining the integrity and improving the competence of the bar to meet the highest standards is the ethical responsibility of every lawyer.

DR 4-101(D) A lawyer shall exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences or secrets of a client ****.

State -vs- Richards An attorney should not only avoid impropriety but should avoid the appearance of impropriety.

Canon 9 A lawyer should avoid the appearance of impropriety.

THE QUESTION

Is it proper for a legal secretary, who has terminated her employment in a law firm to be subsequently employed by a competing law firm?

THE PROBLEM

This involves a community of about 2400 people with three law firms. A legal secretary leaves Law Firm "A" and wishes to be hired by Law Firm "B". It would be inconvenient, perhaps impossible, for her to seek employment elsewhere, because of her responsibilities at home. The reason for her leaving "A" is not shown nor why she seeks employment with "B", except that she probably needs employment. Although only a few adversary matters involve these two law firms, the bone of contention seems to be that confidential information acquired by her, when employed at "A" might either directly or indirectly, intentionally or unintentionally, improperly militate to the advantage of "B". If "B" is not ethically permitted to hire her, could she claim actionable discrimination against her unemployment? Certainly, not being inextricably bound by the Code of Professional Responsibility, she should be entitled to seek employment wherever she desires, unhampered by possible unethical considerations applying to the employer. Also, some secretaries know little or nothing of the confidential matters discussed with their employers; others may know considerable. However, clients of "A" are entitled to be protected from release of information to "B". How can this dilemma be resolved?

DISCUSSION

In the Preliminary Statement to The Code of Professional Responsibility, it is stated:

"Obviously, the Canons, Ethical
Considerations and Disciplinary Rules cannot apply to non-lawyers; however, they do define the type of ethical conduct that the public has a right to expect not only of lawyers but also of their non-professional employees and associates in all matters pertaining to professional employment. A lawyer should ultimately be responsible for the conduct of his employees and associates in the course of the professional representation of the client."

In State ex rel. Nebraska State Bar Ass'n. -vs- Richards, 165 Neb. 80, 93, 84 N.W. (2nd) 136, 145 (1957), our Court stated that "An attorney should not only avoid impropriety but should avoid the appearance of impropriety." This, of course, is the essence of Canon 9 of The Code of Professional Responsibility.

Disciplinary Rule 4-101 (D) states that "A lawyer shall exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by DR-101(C) through an employee."

Canon I states that "A lawyer should assist in maintaining integrity and competence of the legal profession" and EC 1-1 states in part, "Maintaining the integrity and improving the competence of the bar to meet the highest standards is the ethical responsibility of every lawyer."

In other words, EVERY lawyer - and this means the lawyers in both Law Firm "A" AND in Law Firm "B", must maintain the integrity of the bar, avoid the appearance of impropriety, and make certain that all lawyers preserve the confidences of their clients. While this was formerly the primary responsibility of the lawyers in "A", the lawyers in "B" are not relieved of that responsibility. The latter have an obligation also to make certain that this ethical responsibility of "A" is upheld and not violated. Hence, the lawyers in "B" are under a duty to instruct the new secretary and impress upon her the obligation to preserve all confidences, acquired at "A", and for her to take all reasonable precautions against releasing any such information to "B", as well as to advise her of the possibility of actions based on civil liability resulting from improper disclosure of such confidential information.

The effect of the foregoing would be to place an ethical responsibility on "B", if and when they undertake to hire the secretary of a competing law firm. The lawyers in "B" cannot absolve themselves of this obligation to make certain that nothing whatever will be done to have the confidences of the clients of another lawyer violated.

As a practical matter, we have young lawyers leaving one law firm and going to other firms and this transfer of employment does not seem to pose any particular problem, the only difference being that in their case, the ethical responsibility must be born by them, as lawyers, whereas, where lay employees are involved, that obligation and responsibility shift to the new employer or employers, who then must lean back-ward to make certain that none of the confidences of the clients of the prior lawyer have been violated. Hence, subject to the foregoing, it is not necessarily unethical for a competing law firm to hire a former secretary of another law firm, where the secretary is not solicited from her previous employment but voluntarily seeks subsequent employment in a competing law firm.

Nebraska Ethics Advisory Opinion for Lawyers No. 73-14