Can one part-time nonlawyer work for two Oregon firms that are on opposite sides of matters?

Plain-English summary

Law Firm A employs a nonlawyer part-time. The nonlawyer also proposes to work part-time for Law Firm B, and the two firms are presently on opposite sides of several matters. The opinion asks whether both firms may employ the nonlawyer at the same time.

The opinion concludes yes, qualified, and the answer depends on the nature of the employment and what the nonlawyer may actually know. If the work gives the nonlawyer no access to client information (the example given is a janitor or messenger), there is no reason to prohibit the dual employment. The analysis is more complex where the nonlawyer has access to client information (for example, as a secretary or legal assistant).

The opinion explains that for a shared lawyer, RPC 1.10(a) and the firm definition would treat the two firms as a single unit for conflict purposes, so handling opposite sides of a matter through a common lawyer would be a conflict prohibited under RPC 1.7. But there is no clear basis to apply those imputation rules directly to nonlawyers. The directly applicable rule is RPC 5.3(a), which requires a supervising lawyer to make reasonable efforts to ensure the nonlawyer's conduct is compatible with the lawyer's obligations, and the nonlawyer is bound by the same RPC 1.6(a) confidentiality limits as the lawyer.

So, the opinion concludes, as long as a firm takes reasonable care to ensure the nonlawyer has not in fact worked on or acquired client information on any matter where the firms are adverse, the firm meets its RPC 5.3 obligation. If a firm discovers, or should have discovered, that the nonlawyer acquired such information, the simultaneous employment is improper unless both clients consent after full disclosure.

In practice

The opinion holds that imputation under RPC 1.10 applies to a shared lawyer but not to a shared nonlawyer; the nonlawyer is governed by RPC 5.3 and RPC 1.6. Per the opinion, dual employment by adverse firms is permissible where each firm reasonably ensures the nonlawyer has no involvement in or knowledge of the adverse matters, and requires both clients' consent if such knowledge is acquired.

Common questions

Q: Can a paralegal or secretary work for two firms that oppose each other?

A: Yes, qualified. The opinion concludes the dual employment is allowed if each firm takes reasonable care under RPC 5.3 that the nonlawyer has not worked on or learned client information in the adverse matters.

Q: Would the answer differ for a shared lawyer?

A: Yes. The opinion concludes a shared lawyer would make the two firms a single unit under RPC 1.10, creating a non-waivable conflict under RPC 1.7 when they are on opposite sides.

Q: What happens if the nonlawyer does learn confidential information about an adverse matter?

A: Then the dual employment is improper unless both clients consent after full disclosure, under RPC 1.6(a).

Background and rules framework

The opinion interprets Oregon RPC 5.3(a) (responsibilities regarding nonlawyer assistants), RPC 1.6(a) (confidentiality), and contrasts them with RPC 1.10(a) (imputation of conflicts within a firm) and RPC 1.7 (current-client conflicts). These track Model Rules 5.3, 1.6, 1.10, and 1.7.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 5.3(a) / Model Rule 5.3 (nonlawyer assistants)
• Oregon RPC 1.6(a) / Model Rule 1.6 (confidentiality)
• Oregon RPC 1.10(a) / Model Rule 1.10 (imputation of conflicts)
• Oregon RPC 1.7 / Model Rule 1.7 (current-client conflicts)

Cases:

• State v. Charlesworth, 151 Or App 100, 951 P2d 153 (1997)

See also

• OSB Ethics Op. 2005-40: Representing a Debtor and Creditors in Bankruptcy
• OSB Ethics Op. 2005-12: Firm Names and Office Sharing

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-44.pdf