My secretary previously worked for the firm now representing the wife and knows confidential information about her. Can my firm keep representing the husband, and can the husband waive the conflict?

Plain-English summary

A client (the husband) retained the attorney for a domestic action. While preparing pleadings, the attorney's secretary recognized the wife's maiden name and told the attorney that her previous employer represents the wife in the divorce and that she had become privy to confidential information. The attorney instructed the secretary not to divulge it and asked whether the firm may continue to represent the husband, and whether a Rule 1.10 disqualification may be waived by the client.

The opinion begins with Rule 5.3, "Responsibilities Regarding Nonlawyer Assistants." Under Rule 5.3(c)(2), a lawyer with direct supervisory authority who knows of a nonlawyer's conduct that would violate the Rules, at a time when its consequences can be avoided or mitigated, is responsible if the lawyer fails to take reasonable remedial action. Because the confidential information relates directly to the representation of a client, it is protected under Rule 1.6, and the secretary's conduct is imputed to the supervising attorney.

The opinion then applies Rule 1.10, "Imputed Disqualification: General Rule." Under Rule 1.10(b), because the attorney may have knowledge protected by Rules 1.6 and 1.9(b) that is material to the matter, that knowledge is imputed to the entire firm. Rule 1.10(d) allows the disqualification to be waived by the affected client under the conditions in Rule 1.7. The opinion identifies the practical problem: to obtain the husband's consent, the information would have to be revealed. It concludes the wife's informed consent must be obtained first to protect the information, and it cautions that direct contact with the wife is governed by Rule 4.2.

In practice

Under this opinion, the secretary's knowledge does not stay siloed: Rule 5.3 imputes her conduct to the supervising lawyer, and Rule 1.10(b) imputes protected knowledge to the whole firm. A waiver route exists under Rule 1.10(d) and Rule 1.7, but the opinion sequences it: because seeking the husband's consent would expose the wife's protected information, the wife's informed consent comes first, and any direct contact with the wife must observe Rule 4.2.

Common questions

Q: Is a nonlawyer employee's confidential knowledge imputed to the firm?

A: Yes. The opinion applies Rule 5.3 to impute the secretary's conduct to the supervising attorney, and Rule 1.10(b) to impute protected knowledge to the entire firm.

Q: Can the husband simply waive the conflict so the firm can continue?

A: The opinion says a Rule 1.10(d) waiver is possible under Rule 1.7 conditions, but obtaining the husband's consent would require revealing the wife's protected information, so the wife's informed consent must be obtained first.

Q: Does Rule 4.2 apply to contacting the wife about consent?

A: Yes. The opinion cautions that direct contact with the wife is governed by Rule 4.2 and that the attorney must adhere to that Rule's mandates.

Background and rules framework

The opinion interprets Rhode Island Rules of Professional Conduct 5.3 (responsibilities regarding nonlawyer assistants), 1.10 (imputed disqualification), 1.6 (confidentiality), 1.7 (conflict-of-interest consent conditions), and 4.2 (communication with a represented person), the analogs of the corresponding Model Rules. Rule 5.3(c)(2) makes a supervising lawyer responsible for a nonlawyer's rule-violating conduct in defined circumstances; Rule 1.10(b) imputes protected knowledge acquired at a prior firm; and Rule 1.10(d) permits waiver under Rule 1.7 conditions.

Citations and references

Rules of Professional Conduct:

• MR 5.3 / RI RPC 5.3(c)(2) (responsibilities regarding nonlawyer assistants)
• MR 1.10 / RI RPC 1.10(b), 1.10(d) (imputed disqualification; waiver)
• MR 1.6 / RI RPC 1.6 (confidentiality of information)
• MR 1.7 / RI RPC 1.7 (conditions for waiver of a conflict)
• MR 4.2 / RI RPC 4.2 (communication with a represented person)

See also

• RI EAP Opinion 92-70: supervised assistant solicitor cannot be screened; imputed disqualification under 1.10/1.11
• RI EAP Opinion 92-96: contacting a former client about the lawyer's own lien is outside 4.2

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2093-11.pdf

Original opinion text

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

Final
ETHICS ADVISORY PANEL
Opinion #93-11, Request #341
Issued March 15, 1993

An attorney seeks Panel guidance with regard to Rules 1.10 and 5.3. A client (husband) retained the attorney for a domestic action. The attorney's secretary recognized the wife's maiden name while preparing the pleadings. The secretary informs the attorney that her previous employer represents the wife in the divorce and she became privy to confidential information. The attorney instructed the secretary not to divulge this confidential information. The attorney asks whether the law firm may continue to represent the husband against the wife in light of the secretary's knowledge of confidential information and whether a disqualification of representation under Rule 1.10 may be waived by the client in this matter.

The Panel's analysis of this matter begins with Rule 5.3 entitled "Responsibilities Regarding Nonlawyer Assistants". Rule 5.3(c)(2) states that:

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(2) the lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Since the confidential information is directly relating to the representation of a client, this information is protected under Rule 1.6. Rule 5.3 mandates that the secretary's conduct is imputed to the attorney who has direct supervisory authority. In this regard, if the secretary violates a Rule, the attorney is responsible for the secretary's conduct. In addition, because the attorney may have knowledge of information directly relating to the representation of a client, this knowledge is imputed to the entire law firm pursuant to Rule 1.10(b). Rule 1.10 entitled "Imputed Disqualification: General Rule" states that:

(b) When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by Rule 1.6 and 1.9(b) that is material to the matter.

Rule 1.10(d) allows "a disqualification prescribed by this rule [which] may be waived by the affected client under the conditions stated in Rule 1.7". The problem in this situation is in order to obtain the husband's consent, the information must be revealed. The Panel believes that the wife's informed consent must be obtained first in order to protect the information. In addition direct contact with the wife is governed by Rule 4.2 and the attorney is cautioned to adhere to the Rule's mandates.