A law firm hires a paralegal or secretary who used to work at another firm, maybe one it now opposes. What must the firm do to supervise that nonlawyer and check for conflicts?

Plain-English summary

The committee addressed what a New York law firm must do when it hires a secretary, paralegal, or other nonlawyer who previously worked at another firm, and whether it must check for conflicts. The starting point is DR 1-104(C), which requires a firm to adequately supervise nonlawyers, and DR 1-104(D), which makes a lawyer responsible for a nonlawyer's conduct that would violate the rules if done by a lawyer, where the lawyer orders or ratifies it or, as a supervisor, knew or should have known and could have acted. DR 4-101(D) separately requires reasonable care to prevent employees from disclosing or using client confidences and secrets. Read together, the firm must supervise nonlawyers as if they were bound by the rules.

On instruction, the committee advises that the firm remind a lateral nonlawyer to protect the prior firm's client confidences (citing EC 4-2 and N.Y. State 422), which may include instructing the nonlawyer not to work on a matter handled at the former firm, and instructing the firm's lawyers not to solicit or accept such confidential information (N.Y. State 700).

On conflict checking, the committee draws a line. DR 5-105(E) requires conflict-checking systems for proposed engagements, and N.Y. State 720 applied that to lawyers joining a firm, but the committee holds DR 5-105(E) does not require checking conflicts when a nonlawyer joins, because a nonlawyer has no former clients and does not represent clients. Even so, the DR 1-104(C) supervision duty makes a conflict check advisable in some circumstances, for example a litigation paralegal joining a small firm from a sole practitioner who is now opposing counsel in a still-pending matter. Where unrelated work is involved (a personal injury firm hiring a paralegal who handled real estate at the old firm), a formal check is not necessary.

If a check reveals the nonlawyer acquired an opposing party's confidential information, the firm must not exploit it (N.Y. State 700; EC 7-10) and must take steps to keep it protected. The degree of supervision scales with the nonlawyer's prior role: a ministerial role may warrant only a warning, a substantive role may require screening, and where screening cannot adequately protect the information, the firm may have to obtain the opposing client's consent, terminate the nonlawyer, or withdraw from the matter.

In practice

Under the New York Code as it stood at the time, the opinion holds that the supervisory duty over a lateral nonlawyer is real but calibrated. The firm should instruct the nonlawyer to protect the prior firm's confidences and instruct its own lawyers not to exploit any that surface. The committee specifically declines to read DR 5-105(E) as imposing an automatic conflict check for nonlawyer hires, while holding that the general DR 1-104(C) supervision duty makes a check advisable where the risk that the nonlawyer carries an opposing party's confidences is high. Where that information exists, the committee lays out an escalating set of measures (instruction, screening, then opposing-client consent, termination, or withdrawal) keyed to whether screening can adequately protect the information.

Common questions

Q: Does a firm have to run a conflict check every time it hires a paralegal or secretary?

A: No. The committee holds DR 5-105(E) does not require a conflict check when a nonlawyer joins, because nonlawyers have no former clients. A check is advisable only where the nonlawyer likely acquired an opposing party's confidences.

Q: When is a conflict check advisable?

A: When the risk is high, for example a litigation paralegal joining a small firm from a now-opposing sole practitioner on a matter that was pending while the paralegal was there. The committee contrasts that with hiring a paralegal for work unrelated to the prior firm's matters.

Q: What if the nonlawyer did acquire an opposing party's confidential information?

A: The firm must not exploit it and must take measures to keep it protected. Depending on the nonlawyer's prior role, that ranges from a warning, to screening, to obtaining the opposing client's consent, terminating the nonlawyer, or withdrawing from the matter.

Q: Can the firm's lawyers listen if the nonlawyer offers harmful information about the former firm's client?

A: No. Citing N.Y. State 700 and EC 7-10, the committee says lawyers must refrain from encouraging or accepting a breach of confidentiality by the nonlawyer.

Background and rules framework

The opinion applies New York's former Code of Professional Responsibility. DR 1-104(A) through (D) impose firm and supervisory duties, including responsibility for nonlawyer conduct (the subject now treated by Model Rule 5.3). DR 4-101(B), (C), and (D) govern client confidences and the duty to prevent employees from disclosing them (the confidentiality framework of Model Rule 1.6). DR 5-105(E) requires conflict-checking systems (related to the imputation principles of Model Rule 1.10). EC 7-10 reflects the duty to avoid needless harm to third persons (analogous to Model Rule 4.4). The committee's central holding distinguishes the conflict-check duty owed for lateral lawyers from the lighter, supervision-driven approach for lateral nonlawyers.

Citations and references

Rules of Professional Conduct:

• MR 5.3 (responsibilities regarding nonlawyer assistants); NY DR 1-104(A)-(D)
• MR 1.6 (confidentiality; preventing employee disclosure); NY DR 4-101(B), (C), (D)
• MR 1.10 (imputation; conflict-checking systems); NY DR 5-105(E)
• MR 4.4 (respect for rights of third persons); NY EC 7-10

Cases:

• Glover Bottled Gas Corp. v. Circle M. Beverage Barn, Inc., 129 A.D.2d 678 (2d Dep't 1987), firm disqualified after hiring a paralegal who had worked on the pending litigation for opposing counsel
• Riddell Sports, Inc. v. Brooks, 1994 U.S. Dist. LEXIS 2290 (S.D.N.Y. 1994), no disqualification where the firm terminated the paralegal
• Mulhern v. Calder, 196 Misc. 2d 818 (Sup. Ct. Alb. Co. 2003), timely screening of a lateral secretary defeated disqualification
• Dubois v. Gradco Sys., Inc., 136 F.R.D. 341 (D. Conn. 1991), counsel must not seek privileged communications from former employees

Other opinions cited:

• N.Y. State 700 (1998): a lawyer may not exploit an adversary's former nonlawyer employee's offer of confidential information
• N.Y. State 720 (1999): DR 5-105(E) conflict-checking extends to lawyers joining a firm
• N.Y. State 422 (1975): a lawyer may hire an opposing firm's former secretary if cautioned not to divulge confidences
• ABA Formal Op. 91-359: an adversary attorney must not induce a former employee to violate privilege

See also

• NY State Bar Op. 1133: Custodian of client files contacting prior clients
• NY State Bar Op. 1186: Legal aid society screening and separate law firms
• NY State Bar Op. 1060: Delegating escrow sub-account tasks to nonlawyer staff

Source

• Landing page: https://nysba.org/ethics-opinion-774/