Can a private-practice lawyer hire a non-lawyer who works full time for the local prosecutor's office to moonlight on the firm's immigration cases?

Plain-English summary

The inquiring lawyer is a partner in a general-practice firm handling civil litigation, criminal defense, and immigration. The firm's criminal matters are often prosecuted by the local Solicitor's Office. The lawyer wanted to hire, for after-hours part-time work on immigration cases, a secretary/paralegal who works full time for that Solicitor's Office, where she supports three prosecutors. The Solicitor consented to the arrangement. The non-lawyer would work strictly on immigration matters, would have no access to any criminal files, and no firm member or employee would discuss criminal matters with her.

The committee held that the arrangement carries a risk of confidentiality and conflict-of-interest violations but is not prohibited by the Rules if strict screening, confidentiality, and supervision procedures are in place. It anchored the analysis in Rule 5.3, which makes a supervising lawyer responsible for ensuring a non-lawyer's conduct is compatible with the lawyer's professional obligations and, in defined circumstances, responsible for the non-lawyer's conduct that would violate the Rules if done by a lawyer. The committee read Rule 5.3 as imposing on the inquirer the duty to ensure the assistant does nothing a lawyer would be ethically barred from doing, such as creating a conflict by obtaining confidential information. It described a two-tier approach: first, whether a lawyer could engage in the proposed conduct; second, whether anything warrants treating the assistant's situation differently.

The committee concluded the risk that a non-lawyer employee could influence a criminal prosecution for a private client's benefit is far lower than it would be for a lawyer. A non-lawyer strictly screened from criminal matters, subject to clear confidentiality provisions covering all client information (preferably in a signed writing), and properly supervised may work as proposed; the key requirement is that the non-lawyer place client confidentiality above any obligation to the Solicitor's Office. The committee added a caution specific to immigration practice: because immigration matters routinely require review of an applicant's criminal history, and some clients seek changes in status while in violation of immigration law, there is an institutional overlap between criminal and immigration law that underscores the need for strict confidentiality. The non-lawyer should be hired for immigration work only after acknowledging that those confidentiality obligations do not conflict with any duty owed to the Solicitor's Office.

In practice

Under this opinion, the cross-employment arrangement is permitted but conditioned. The committee held that, under Rule 5.3, the hiring lawyer must screen the non-lawyer from all criminal matters, impose clear confidentiality provisions covering all client information (the committee said a signed writing is preferable), and provide proper supervision, with the non-lawyer placing client confidentiality above any obligation to the Solicitor's Office. The committee identified the criminal-immigration overlap (immigration applications routinely require review of an applicant's criminal history) as a reason the confidentiality terms matter, and held the non-lawyer should be hired only after acknowledging those confidentiality duties do not conflict with duties owed to the prosecutor's office.

Common questions

Q: Can a defense firm hire a prosecutor's office employee to moonlight?

A: The committee concluded it is not prohibited by the Rules, provided the non-lawyer is strictly screened from criminal matters, bound by clear confidentiality provisions, and properly supervised under Rule 5.3.

Q: What is the single most important condition?

A: The committee said the key requirement is that the non-lawyer place client confidentiality above any obligations to the Solicitor's Office.

Q: Does it matter that the work is immigration rather than another practice area?

A: Yes. The committee noted that immigration practice overlaps with criminal law because applications routinely require review of a client's criminal history, which heightens the confidentiality concerns and the need for the non-lawyer to acknowledge that the firm's confidentiality duties do not conflict with duties to the prosecutor's office.

Q: Is the prosecutor's consent enough on its own?

A: No. Although the Solicitor consented, the committee grounded the permissibility in Rule 5.3's screening, confidentiality, and supervision requirements, not in the prosecutor's permission alone.

Background and rules framework

The opinion applies South Carolina Rule 5.3 (responsibilities regarding nonlawyer assistants), which corresponds to Model Rule 5.3. The committee quoted Rule 5.3(b) (the duty to make reasonable efforts to ensure a nonlawyer's conduct is compatible with the lawyer's professional obligations) and Rule 5.3(c) (when a lawyer is responsible for a nonlawyer's conduct that would violate the Rules if done by a lawyer), and read them together to require screening, confidentiality, and supervision in this cross-employment situation.

Citations and references

Rules of Professional Conduct:

• MR 5.3 / SC Rule 5.3 (responsibilities regarding nonlawyer assistants; supervision; responsibility for nonlawyer conduct)

See also

• SC Bar Ethics Op. 06-05: Supervising a Trust Bookkeeper
• SC Bar Ethics Op. 06-12: Lawyer Supervised by a Nonlawyer
• SC Bar Ethics Op. 06-07: Out-of-State SSA Associate

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-07-02/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 07-02

SC Rules of Professional Conduct: 5.3

Facts
Lawyer is a partner in a general practice firm that includes civil litigation, criminal defense and immigration. The criminal matters are often prosecuted by the Solicitor’s Office. Lawyer wishes to hire a secretary/paralegal employed by the local Solicitor’s office for part-time work, assisting in processing immigration cases after hours. In her full-time job, this secretary is assigned as support staff for three prosecutors. The Solicitor has given permission to the lawyer to hire the secretary to work part-time on immigration cases.

The secretary would work strictly on immigration matters for local firm and would not have access to any criminal files. No criminal matters will be discussed with her by any member or employee of local firm.

Question
Is it ethically permissible for a lawyer in private practice to hire a non-lawyer employee of the Solicitor’s Office to work concurrently in his office on immigration matters while she continues full time work for the Solicitor’s Office?

Summary
Such an arrangement entails a risk of potential violations of the confidentiality and conflict of interest provisions of the Rules of Professional Conduct. Nevertheless, subject to strict screening, confidentiality, and supervision procedures, it is not prohibited by the Rules of Professional Conduct.

Opinion
The starting point for analyzing this issue is Rule 5.3 of the Rules of Professional Conduct:

With respect to a nonlawyer employed or retained by or associated with a lawyer:

. . .

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and

(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:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority 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.

This Rule imposes upon the inquirer the obligation of ensuring that the assistant undertake no course of conduct that a lawyer would be ethically prohibited from undertaking, such as creating a conflict of interest by obtaining confidential information.

The language of Rule 5.3 suggests a two-tier approach to considering this inquiry: first, determining whether a lawyer could engage in the proposed conduct described; and second, evaluating whether there is any reason to treat such conduct differently in the case of the assistant.

The risk that a non-lawyer employee could influence a criminal prosecution for the benefit of a private client is far lower than it would be in the case of a lawyer. The Committee believes that a non-lawyer employee strictly screened from any criminal matters, subject to clear confidentiality provisions with respect to all client information (preferably in a signed writing), and under proper supervision, may work in the capacity proposed by the inquirer. The key requirement is that the non-lawyer place client confidentiality above any obligations to the Solicitor’s Office.

inally, it bears mention that the inquirer has asked specifically about an immigration practice. Due to the nature of immigration practice, most legal work involving a client’s attempt to gain favorable immigration status will require the reviewing immigration authorities to determine the applicant’s past and current criminal history. In some cases, immigration law practitioners are asked to obtain changes in immigration status for clients currently in violation of immigration laws. Thus, there is an institutional overlap between criminal and immigration law. This overlap underscores the importance of strict confidentiality with respect to all client matters. The non-lawyer employee should be hired for immigration work only if he or she has acknowledged that such confidentiality obligations do not conflict with any obligations owed to the Solicitor’s Office.