If a law firm hires a secretary or legal assistant who worked for the opposing firm in a pending case, must the hiring firm be disqualified?

Plain-English summary

During a pending lawsuit, an attorney fired his "right hand" secretary or legal assistant, leaving bad feelings between them. The former assistant soon took a secretary/legal-assistant position at the opposing firm. Both firms were small (fewer than five lawyers). The question was whether the new firm had to be disqualified from continuing to represent a party adverse to the former employer's client.

The Committee quoted Rule 5.03, which requires a lawyer with direct supervisory authority over a nonlawyer to make reasonable efforts to ensure the nonlawyer's conduct is compatible with the lawyer's professional obligations, and which can subject the lawyer to discipline for the nonlawyer's conduct in defined circumstances. It contrasted the former Code (DR 9-101 and DR 4-101 and case law requiring disqualification to avoid the appearance of impropriety) with the current rules, which the Committee concluded do not require automatic disqualification on appearance-of-impropriety grounds.

Instead, the Committee concluded, Rule 5.03 requires the nonlawyer's supervising lawyer to ensure compliance with Rule 1.05 (client confidences), Rule 1.06 (conflicts of interest), and Rule 1.09 (former-client conflicts). If the supervising lawyer complies with those rules so as to ensure the nonlawyer's conduct is compatible with a lawyer's professional obligations, then the new firm is not ethically required to disqualify itself from representing a party adverse to the former employer's client.

Currency note

This opinion was issued in 1991, under the Texas Disciplinary Rules of Professional Conduct that took effect January 1, 1990. Texas did not adopt the ABA's Ethics 2000 revisions; its rules have been amended only piecemeal since, including the comprehensive 2021 revisions adopted by Texas Supreme Court order. 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 Treat this page as historical context, not current guidance.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 a firm automatically disqualified when it hires a nonlawyer from the opposing firm?

A: The Committee concluded no. The current rules do not require automatic disqualification to avoid an appearance of impropriety, unlike the former Code and case law.

Q: What does the hiring firm have to do?

A: Per the opinion, the supervising lawyer must comply with Rule 5.03 by ensuring the nonlawyer's conduct meets Rule 1.05 (confidences), Rule 1.06 (conflicts), and Rule 1.09 (former-client conflicts).

Q: Does the rule treat secretaries and legal assistants the same way?

A: Yes. Rule 5.03 and its Comment address nonlawyer assistants generally, including secretaries and legal assistants, and place supervisory responsibility on the lawyer.

Background and rules framework

The opinion interprets Texas Disciplinary Rule 5.03 (responsibilities regarding nonlawyer assistants; ABA Model Rule 5.3) and its Comment, applied alongside Rule 1.05 (confidentiality), Rule 1.06 (conflicts of interest), and Rule 1.09 (former-client conflicts). The analysis turns on supervision of the nonlawyer to protect client confidences rather than on an automatic appearance-of-impropriety disqualification.

Citations and references

Rules of Professional Conduct:

• MR 5.3 (responsibilities regarding nonlawyer assistants)
• Texas Disciplinary Rule 5.03 and Comment; Rule 1.05; Rule 1.06; Rule 1.09

See also

• ABA Formal Op. 506: Responsibilities Regarding Nonlawyer Assistants
• TX Ethics Op. 556: Giving Confidential Client Information to a Collection Agency's Borrowed Employees

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-472/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_472.pdf

Original opinion text

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

QUESTION PRESENTED

Should the new law firm where the legal assistant has taken employment, be disqualified from further representation of a party adverse to the former employer's client?

STATEMENT OF FACTS

During pendency of a lawsuit one of the attorneys fires his "right hand" secretary or legal assistant, with bad feelings existing between the attorney and the fired legal assistant. The former legal assistant soon takes employment as a secretary/legal assistant at the opposing law firm. Both firms are small firms, with less than five lawyers.

DISCUSSION

Rule 5.03 provides as to responsibilities regarding non-lawyer assistants: "With respect to a non-lawyer employee retained by or associated with a lawyer: (a) a lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and (b) a lawyer shall be subject to discipline for the conduct of such a person that would be a violation of these rules if engaged in by a lawyer if: (1) the lawyer orders, encourages or permits the conduct involved; or (2) the lawyer: (I) is a partner in the law firm in which the person is employed, retained by, or associated with; or is the general counsel of a governmental agency's legal department in which the person is employed, retained by, or associated with; or has direct supervisory authority over such person; and (ii) with knowledge of such misconduct by the non-lawyer knowingly fails to take reasonable remedial action to avoid or mitigate the consequences of that person's misconduct." The Comment under Rule 5.03 provides: "Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and health professionals. Such assistants act for the lawyer in the rendition of the lawyer's professional services. A lawyer should give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose the information relating to representation of a client, and should be responsible for their work product. The measures employed in supervising non-lawyers should take account of the fact that they do not have legal training and are not subject to professional discipline. Each lawyer in a position of authority in a law firm or in a government agency should make reasonable efforts to ensure that the organization has in effect measures giving reasonable assurance that the conduct of non-lawyers employed or retained by or associated with the firm or legal department is compatible with the professional obligations of the lawyer. This ethical obligation includes lawyers having supervisory authority or intermediate managerial responsibilities in the law department of any enterprise or government agency."

While the old DR 9-101 required attorneys to avoid the appearance of impropriety and the old DR 4-101 encouraged lawyers to avoid any likelihood of public suspicion of the legal profession and the case law generally requires disqualification to avoid the appearance of impropriety because of conflicts of interest, the new Rules do not require automatic disqualification to avoid the appearance of impropriety. However, Rule 5.03 specifically requires a non- lawyer's supervising lawyer to make reasonable efforts to ensure that the non- lawyer conduct is compatible with the professional obligations of the lawyer, where the lawyer could be subject to discipline for the conduct of such lay person. Thus, the non-lawyer's supervising lawyer must ensure that Rule 1.05 concerning client confidences, Rule 1.06 concerning conflicts of interest, and Rule 1.09 concerning former client conflicts of interest must be fully complied with.

If the supervising lawyer of the legal assistant or secretary complies with Rule 1.05 concerning client confidences, complies with Rule 1.06 concerning conflicts of interest, and complies with Rule 1.09 concerning former client- conflicts of interest, so as to ensure the non-lawyer's conduct is compatible with the professional obligations of a lawyer, then the new law firm is not ethically required to disqualify the new law firm, under the Disciplinary Rules, from representation of a party adverse to the former employer's client.

CONCLUSION

If the supervising lawyer of the legal assistant or secretary complies with Rule 1.05 concerning client confidences, complies with Rule 1.06 concerning conflicts of interest, and complies with Rule 1.09 concerning former client- conflicts of interest, so as to ensure the non-lawyer's conduct is compatible with the professional obligations of a lawyer, then the new law firm is not ethically required to disqualify the new law firm, under the Disciplinary Rules, from representation of a party adverse to the former employer's client.

Tex. Comm. On Professional Ethics, Op. 472 (1991)