Ezel / Ethics Opinions / SBAND

Can a firm hire opposing counsel’s former secretary and continue the pending case if it screens the employee?

Short answer The committee found no ethics-rule bar to continuing the case if the firm used effective screening before the secretary started and no client confidences were disclosed; the court retained authority over disqualification.
Bar
SBAND
Issued
February 23, 1998
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1998. Ask about yours and see what the current North Dakota Rules of Professional Conduct say for your facts, with citations.

How much weight this carries: Under North Dakota Rule for Lawyer Discipline 1.2(B), a lawyer who acts in good faith and in reasonable reliance on a written opinion of the association's ethics committee is not subject to sanction for the conduct the opinion addresses. Source.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

The requesting firm wanted to hire a legal secretary who had worked on the opposing side of pending litigation. A trial court had rejected the proposed screen and indicated that the firm would be disqualified if the secretary started before the case ended.

The committee considered only the Rules of Professional Conduct. It concluded that the firm could continue the representation under those rules if the detailed screen was effective and no client confidences were actually disclosed. It expressly left the pending case’s disqualification decision to the court.

Currency note

This opinion was issued in 1998, before North Dakota's 2006 revisions to its Rules of Professional Conduct. The later North Dakota Opinion 06-05 states: “On August 1, 2006, material changes to N.D.R. Prof. Conduct 1.10(a) will take effect.” 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Did the committee overturn the trial court's disqualification decision?

A: No. It said disqualification in the pending case was entirely for the court, while its own opinion addressed compliance with the ethics rules.

Q: What conditions did the committee place on its ethics conclusion?

A: The screen had to be effective and implemented before the secretary began work, and there could be no actual disclosure of client confidences.

Background and rules framework

The committee discussed North Dakota Rules 1.10, 1.6, and 5.3. It distinguished a nonlawyer assistant’s screened move from lawyer conflicts and cited the importance of preventing access to client confidences.

Citations and references

Rules of Professional Conduct:

  • North Dakota Rule 1.10.
  • North Dakota Rule 1.6.
  • North Dakota Rule 5.3.

Cases:

  • Heringer v. Haskell, 536 N.W.2d 362 (N.D. 1995), firm access to confidential information and disqualification.
  • Smart Industries Corp. v. Superior Court, 876 P.2d 1176 (Ariz. Ct. App. 1994), screening a nonlawyer assistant.

Other opinions cited:

  • North Dakota Opinion 96-02, screening and conflicts.

See also

Source

Original opinion text

Full opinion text unavailable from the official source; see the linked source above for the complete text.

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