When a secretary who worked on a case moves to opposing counsel's office, is the new firm disqualified, and what must the old lawyer do?

Plain-English summary

Attorney A represented client X against her former husband Y, who was represented by Attorney B. A's only secretary had worked extensively on X's case, including substantive conversations with X and with A about the facts, allegations, defenses, and legal issues. The secretary then left A and went to work for opposing counsel B while the litigation was still pending, and she later asked A's new secretary to send her a document she had prepared while at A's office. The committee was asked what duties A owed X, whether B was imputedly disqualified, and whether B could continue by simply walling the secretary off from the case.

The committee answered all three through Rule 5.3 (responsibilities regarding nonlawyer assistants). Attorney A must take steps he deems necessary to safeguard X's confidential information, both during and after the secretary's employment, to comply with Rule 1.6. The committee did not require A to disclose the secretary's job change to X (though A could if he wished), reasoning X could take little useful action; A's duties remained zealous advocacy and vigilance against misuse of confidences. It noted that the secretary's request for the document might signal an attempt to use confidential information improperly, which A might bring to B's attention, with motions if confidences were being violated. Attorney B is not imputedly disqualified, because Rules 1.9 and 1.10 apply to lawyers moving between firms, not nonlawyer staff, and Rule 5.3 provides the appropriate safeguard. B may continue representing Y provided he makes reasonable efforts to ensure the secretary's conduct is compatible with his professional obligations; consistent with the committee's Opinion 91-12 and ABA Informal Opinion 88-1526, the secretary should be screened from matters she worked on at the old firm, and if formal screening is not possible, Rule 5.3's reasonable-efforts standard governs.

Currency note

This opinion was issued in 1993, 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 Treat this page as historical context, not current guidance.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: Is the opposing firm disqualified because it hired the secretary?

A: The committee concluded no. Imputed disqualification under Rules 1.9 and 1.10 applies to lawyers moving between firms, not to nonlawyer staff; Rule 5.3 governs instead.

Q: How can the new firm continue representing its client?

A: By making reasonable efforts under Rule 5.3 to keep the secretary's conduct compatible with its obligations, ideally screening her from matters she worked on at the old firm.

Q: What must the original lawyer do?

A: Attorney A must safeguard the client's confidential information against misuse, remain vigilant, and may raise concerns with opposing counsel or seek appropriate motions if confidences are being violated.

Background and rules framework

The opinion applied Rule 5.3 (responsibilities regarding nonlawyer assistants) and Rule 1.6 (confidentiality), distinguishing the imputed-disqualification rules (Rules 1.9 and 1.10) that govern lawyers, not staff. It relied on its Opinion 91-12 and ABA Informal Opinion 88-1526. The South Carolina rule numbers correspond to the like-numbered Model Rules.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 5.3 / Model Rule 5.3: responsibilities regarding nonlawyer assistants.
• South Carolina RPC 1.6 / Model Rule 1.6: confidentiality of information.
• South Carolina RPC 1.9 / Model Rule 1.9 and RPC 1.10 / Model Rule 1.10: former clients and imputed disqualification (lawyers, not staff).

Other opinions cited:

• SC Bar Adv. Op. 91-12; ABA Informal Op. 88-1526: a paralegal or nonlawyer moving between firms; screening.

See also

• SC Bar Ethics Op. 94-13: Former-Client Divorce and Custody Conflict
• SC Bar Ethics Op. 94-36: Billing Staff Time as Paralegal

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-93-29/

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 93-29

Attorney A represents client X who is involved in a pending legal matter brought by her former husband Y. Y is represented by attorney B. From the beginning of attorney A's representation his only secretary prepared all correspondence, pleadings, affidavits, and conferences between client X and attorney A. The secretary engaged in numerous telephone conversations and person-to-person conversations with client X regarding the specific facts, allegations, and defenses involved in the litigation. Attorney A and secretary had numerous conversations regarding all facets of the case, both factual and legal.

Subsequently, secretary left the employment of attorney A and became employed by attorney B. The litigation is still pending and final hearing is scheduled. Recently, secretary contacted the new secretary of attorney A and requested that a document previously prepared by secretary be sent to attorney B. (The document was prepared by secretary while employed by attorney A.)

Questions:

1. Other than disclosure of these facts to client X, what other obligation or duty does attorney A have to client X?
2. Does attorney B have an imputed disqualification of future representation of client Y because of the employment of secretary?
3. Can attorney B continue representation of client Y solely by requiring secretary to do no further work on the case?

Summary:

1. Attorney A must take all steps he deems necessary to protect the confidentiality of information provided to him by client X.
2. Attorney B does not have an imputed disqualification solely because of the employment of secretary.
3. Attorney B can continue representation of client Y provided he makes reasonable efforts to ensure that secretary's conduct is compatible with his professional obligations.

Opinion:
Rule 5. 3 answers these questions. A lawyer is responsible for making reasonable efforts to ensure that nonlawyers employed by him conduct themselves in a manner compatible with the professional obligations of the lawyer, which, of course, includes compliance with the Rules of Professional Conduct. Consequently, attorney A is responsible for having and maintaining safeguards of confidential information provided to him by client X, both while secretary was employed by him and now that she is not, so that he is in compliance with Rule 1.6.

It does not appear that disclosure to client X of secretary's change of employment is required, though A may feel that he would prefer that X hear of this change from him first, if he feels this will be a source of apprehension to X. There seems little action X could take based on this information, since X has no control over attorney B and discharging attorney A would serve no purpose and probably be counterproductive. Attorney A's duties to X remain to provide zealous advocacy and to be vigilant to detect and prevent use of any confidential information to which secretary may have been privy.

The recent request by secretary for a document previously prepared by her may put attorney A on alert that secretary may be attempting, advertently or inadvertently, to use confidential information improperly, and attorney A may feel it his duty to bring this conduct and the possibility of future improper conduct to the attention of attorney B. If attorney A comes to believe that confidences of client X are being violated, appropriate motions may be necessary.

Attorney B has no imputed disqualification from further representation of client Y, however, since Rules 1.9 and 1.10 apply only when lawyers move between firms. These Rules imply that Rule 5.3 will provide a sufficient safeguard an to personnel moving between firms. The comment to Rule 1.9 is instructive: "If the concept of imputation were applied with unqualified rigor, the result would be radical curtailment of the opportunity of lawyers to move from one practice setting to another and of the opportunity of clients to change counsel." It would appear that even less restriction should apply to legal staff who are not even directly bound by the Rules.

In Advisory Opinion 91-12, the committee addressed the movement of a paralegal between law firms, citing ABA Informal Opinion 88-1526. The ABA has suggested that the paralegal at the new firm be screened from matters on which the paralegal worked at the old firm. If formal screening is not possible, Rule 5.3 requires the lawyer to make "...reasonable efforts to insure that the (employee's) conduct is compatible with the professional obligations of the lawyer...".