Can a lawyer hire as a paralegal a former secretary of a corporation that is an adverse party in the lawyer's litigation?

Plain-English summary

Individual A previously worked as a secretary for a corporation that is an adverse party in litigation involving Lawyer B's clients. Lawyer B wished to hire A as a paralegal two months after A last worked for the corporation. A had no decision-making role, held no corporate documents, had no privileged information that would not otherwise be discoverable, and was unlikely to be a witness. The committee was asked whether B could hire A.

The committee noted the Rules do not directly address a non-lawyer employee changing jobs, but found several rules instructive. Rule 4.2 limits a lawyer's contact with represented parties, and its comment bars contact with current employees who have managerial responsibility or whose statements may bind the organization, but does not purport to limit contact with former employees; citing the split in the courts (Niesig v. Team I and Porter v. Arco Metals) and ABA Formal Opinion 91-359, which permits communicating with former employees of an adverse corporate party so long as the lawyer does not seek privileged attorney-client communications, the committee said the proposed contact did not appear to violate Rule 4.2, especially given A's lack of decision-making responsibility. Because hiring goes beyond an interview, the committee also considered Rule 1.9 (the analogous lawyer-mobility rule, which turns on acquisition of material protected information) and Rule 5.3 (responsibility for non-lawyer assistants). Applying Rule 1.9's focus on protected information, and citing a Dallas Bar opinion and ABA Informal Opinion 88-1526 on paralegal mobility (which favors screening over automatic disqualification and minimal restrictions on a non-lawyer's employment), the committee concluded that where the paralegal had no decision-making authority in the prior job, the appropriate focus is whether the paralegal has privileged information that may be disclosed in the new employment; if not, the hiring would not violate any ethical rule, and it would not matter that the paralegal was still employed by the corporation when the action began. In a footnote, the committee observed that if the prospective employee were a likely favorable witness, the lawyer should consider whether the employment might undercut the witness's apparent credibility and thereby harm the client.

Currency note

This opinion was issued in 1991, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 mentioned here.

Common questions

Q: Can a firm hire an adverse corporation's former secretary as a paralegal?

A: The committee said yes, at least where she had no decision-making role, holds no privileged information, and is unlikely to be a witness.

Q: Does contacting or hiring a former employee violate Rule 4.2?

A: The committee said no; Rule 4.2's comment does not limit contact with former employees, and ABA Formal Opinion 91-359 permits it so long as the lawyer does not seek privileged attorney-client communications.

Q: What is the key concern when hiring such a paralegal?

A: The committee said the focus is whether the paralegal holds privileged information that could be disclosed in the new job; if not, the hiring is permissible, consistent with the screening approach for paralegals who move between firms.

Background and rules framework

The opinion interprets Rule 4.2 (communication with represented persons), Rule 1.9 (duties to former clients, by analogy), and Rule 5.3 (responsibilities regarding non-lawyer assistants), each corresponding to the like-numbered Model Rule. The committee made the presence or absence of protected information the controlling factor.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 4.2 / Model Rule 4.2: communication with represented persons; its comment does not bar contact with former employees.
• South Carolina RPC 1.9 / Model Rule 1.9: former-client duties turn on acquisition of material protected information.
• South Carolina RPC 5.3 / Model Rule 5.3: responsibilities regarding non-lawyer assistants.

Cases:

• Niesig v. Team I, 559 N.Y.S.2d 493 (1990), Rule 4.2 does not apply to contacts with former employees.
• Porter v. Arco Metals, 642 F. Supp. 1116 (D. Mont. 1988), barring contact with certain former managerial employees.

Other opinions cited:

• ABA Formal Op. 91-359 (1991): communicating with former employees of an adverse corporate party.
• ABA Informal Op. 88-1526 and Dallas Bar Ethics Op. 1989-3: paralegal mobility and screening.

See also

• SC Bar Ethics Op. 91-03: Whether a Brief Staff Contact Created an Attorney-Client Relationship
• SC Bar Ethics Op. 91-29: Former Judicial Law Clerk Representing a Party on Appeal

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-91-12/

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 91-12

Individual A previously worked as a secretary for a corporation that is an adverse party in litigation involving clients of Lawyer B. Lawyer B now wishes to hire A as a paralegal, two months after A last worked for the corporation. A did not serve in a decision-making capacity in the previous employment, is not in possession of any corporate documents, has no privileged information that would not be otherwise discoverable, and is unlikely to be called as a witness.

Question:
Can a lawyer hire a paralegal who previously worked as a secretary for a corporation that is an adverse party in litigation involving clients of the lawyer?

Summary:
A lawyer who represents a client in a matter adverse to a corporate party may hire as a paralegal a former employee of the corporate party, at least when the paralegal had no decision making role while employed by the corporation, possesses no protected information, and is not likely to be called as a witness in the litigation.

Opinion:
Although the Rules of Professional Conduct address various situations in which a lawyer changes jobs, they do not directly address the question presented involving a non-lawyer employee. Several rules, however, are instructive. First, Rule 4.2 addresses the permissible limits of contact by a lawyer with other parties represented by counsel, including current employees of corporate parties. The comment to that rule prohibits direct contact by a lawyer, without the consent of counsel, with any person having managerial responsibility within an organization, with any person whose actions may be imputed to the organization, or with any person whose statements may bind the company. The comment, however, does not directly purport to limit contact with any former employee of a corporate party.

There has been some disagreement in the courts regarding whether Rules 4.2 bars contact with former employees. Compare Niesig v. Team I, 559 N.Y.S. 2d 493 (1990) (holding the rule does not apply to contacts with former employees) with Porter v. Arco Metals, 642 F. Supp. 1116 (D. Mont 1988) (barring contact with former employees who had managerial responsibility regarding the matter in litigation). A recent formal opinion of the American Bar Association, however, adopts the view that a lawyer is free to communicate with former employees of an adverse corporate party about the subject of the representation without the consent of the organization's lawyer, at least so long as the lawyer does not attempt to induce disclosure of information privileged as attorney-client communications. ABA Formal Op. # 91-359 (Mar. 22, 1991). Accordingly, the proposed contact with a former employee of the corporation does not appear to violate Rule 4.2, particularly given the fact that A had no decision making responsibilities.

Because the contact with the former employee goes beyond a mere interview and includes hiring the former employee to a position in B's law firm, it also is appropriate to consider Rule 1.9 and 5.3. Rule 1.9 addresses the somewhat analogous situation in which a lawyer moves between law firms. Rule 5.3, in turn, requires a lawyer to ensure that the conduct of a nonlawyer assistant is compatible with the professional obligations of the lawyer and that the nonlawyer assistant does not engage in conduct that would be a violation of the ethical rules if engaged in by the lawyer.

Under Rule 1.9, a lawyer hired by a new firm cannot, without consent, represent a person in a matter substantially related to a matter in which the lawyer's prior firm represented an adverse party, if the lawyer had acquired material, protected information during the prior representation. It would seem to follow, applying Rule 5.3, that a paralegal hired by a law firm could not work on a matter if the paralegal had acquired protected information in a previous job with an adverse party corporation. The only opinion found by the Committee that is on point is an advisory opinion of the Dallas, Texas, Bar Association rendered under the old Model Code, which concluded that a law firm representing a client in litigation against a corporation may hire a former employee of the corporation if the employee left the corporation before the litigation began, has no direct knowledge of the litigation or confidential information, and will not be a witness. Dallas Bar Assoc. Ethics Adv. Op. # 1989-3 (undated), summarized at ABA/BNA Lawyers' Manual on Professional Conduct 901:8492.

Insofar as Rule 1.9 focuses upon a lawyer's acquisition of protected information in resolving the analogous issue addressed in that rule, we believe, at least where the paralegal did not have any decision making authority in the prior employment, that the appropriate focus in the case presented should be upon whether the paralegal has privileged information that may be disclosed in the new employment. If not, we conclude that the proposed hiring would not violate any ethical rules. It should not matter that the paralegal was still employed by the corporation at the time the action was commenced.

This result is consistent with ABA Informal Opinion 88-1526, which addresses the movement of a paralegal between law firms. That opinion recognizes that "any restrictions on the nonlawyer's employment should be held to the minimum necessary to protect confidentiality of client information." It concluded that a firm should not be automatically disqualified from a matter even when it hires a paralegal who worked on the same matter at another firm. In order to avoid a breach of confidentiality, a paralegal who moves between firms simply should be screened from matters upon which the paralegal worked at the prior law firm. If a lawyer can hire a paralegal who had access to privileged information at a prior law firm representing an adverse party, there should be no prohibition here upon the lawyer hiring a former employee of the adverse party who was not privy to such information and who will not be a witness in the litigation.1 1 We point out that if the prospective employee was a likely witness favorable to the law firm's client, the lawyer should consider whether the apparent credibility of the witness might be adversely affected by the employment. The witness no longer would be independent, but would be an employee of the lawyer representing the party for whom the witness is testifying. The interest of the client might thereby be adversely affected.