Can a lawyer hire a secretary who is leaving a firm the lawyer has pending adversarial matters against?
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This page answers the general question as of 1975. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
The committee addressed whether an attorney may employ a secretary who has just left another firm against which the attorney has adversarial matters pending. It drew a distinction at the threshold: if the secretary possesses no confidential information about the pending matters, no problem exists and the attorney may hire her. The harder question arises where the secretary holds confidential or secret information relating to those matters.
The committee anchored the analysis in the duty to preserve client confidences. EC 4-1 makes clear that both the lawyer-client fiduciary relationship and the proper functioning of the legal system require the lawyer to preserve confidences and secrets, and DR 4-101(D) requires a lawyer to exercise reasonable care to prevent his employees from disclosing confidential information. Because the obligation to preserve confidences continues after the lawyer's employment ends (EC 4-6), a correlative duty falls on the hiring attorney not to create a situation that may lead the secretary, even innocently, to divulge the former employer's client confidences. It cited N.Y. State 386 (1975), which under Canon 9 forbids allowing a situation where the leaking of confidential information is foreseeable, and ABA Inf. 692 (1964).
The committee concluded that the attorney may employ the departing secretary who holds confidential information about the pending adversarial matters, provided he cautions the secretary not to divulge any confidential information and does not permit her to do so.
Currency note
This opinion was issued in 1975, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (confidentiality is now governed by Rule 1.6, supervision of nonlawyer assistants by Rule 5.3, and imputation, including nonlawyer screening, by Rule 1.10). 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 Treat this page as historical context, not current guidance.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: Can a lawyer hire a secretary coming from a firm the lawyer is litigating against?
A: Under this opinion, yes. If the secretary holds no confidential information about the pending matters, there is no problem; if she does, the lawyer may still hire her but must take protective steps.
Q: What must the hiring lawyer do if the secretary knows confidences about the pending matters?
A: Per the opinion, the lawyer must caution the secretary not to divulge any confidential information and must not permit her to do so (EC 4-1, EC 4-6; DR 4-101(D)).
Q: Does the secretary's duty of confidentiality end when she leaves the old firm?
A: No. The committee noted that the obligation to preserve confidences continues after the employment ends (EC 4-6), which is why the hiring lawyer must avoid foreseeable leaks under Canon 9 (N.Y. State 386 (1975)).
Background and rules framework
The opinion applies the then-current New York Code's confidentiality and supervision provisions, EC 4-1, EC 4-6, DR 4-101(D), and Canon 9, following N.Y. State 386 (1975) and ABA Inf. 692 (1964). The current analogues are Rule 1.6 (confidentiality), Rule 5.3 (responsibilities regarding nonlawyer assistants), and Rule 1.10 (imputation, including screening of nonlawyer personnel).
Citations and references
Rules of Professional Conduct:
- MR 1.6 (confidentiality of information)
- MR 5.3 (responsibilities regarding nonlawyer assistance)
- MR 1.10 (imputation of conflicts)
- NY EC 4-1, EC 4-6; DR 4-101(D); Canon 9
Other opinions cited:
- N.Y. State 386 (1975): impermissible to allow a foreseeable leak of confidential information under Canon 9
- ABA Inf. 692 (1964): caution where an employee's other ties could expose client confidences
See also
- NY State Bar Op. 436: A firm conflict from an associate's prior representation
- NY State Bar Op. 437: Office-sharing with an assistant DA
- NY State Bar Op. 460: Disposing of closed client files
Source
- Landing page: https://nysba.org/opinion-422/
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