If a Virginia firm hires the secretary or paralegal from opposing counsel's firm, must it withdraw from the shared case?

Plain-English summary

Attorneys A and B represent opposing parties in pending litigation; each runs a two-lawyer firm. After A's firm fired its secretary X, who had worked on this litigation, B's firm hired X the next week. The committee was asked whether B must withdraw, and whether the answer changes if X were a paralegal, had met alone with A's client during discovery, or did nothing for B on the case but answer the phone.

The committee holds that Rules 1.7 and 1.9 begin each paragraph with "a lawyer" and contain nothing directed at non-lawyer staff or at a lawyer's hiring of such staff. So nothing in those rules creates a conflict for a lawyer who hires non-lawyer staff, and the committee declines to follow the minority of states that read the conflict rules to reach support staff. This tracks LEO 745, decided under the former Code, which found no conflict when an attorney hired opposing counsel's non-lawyer staff during a representation.

The governing duty instead is Rule 5.3, which requires a lawyer to instruct and supervise non-lawyer assistants on confidentiality. Both A's firm (during X's employment) and B's firm (on hiring) should make sure X understands the duty not to disclose a former employer's client confidences; any effort by B's firm to learn or use that information would violate Rule 5.3 (and Rule 8.4(a)). Preferring the majority position in ABA Informal Op. 88-1526, the committee reads Rule 5.3 to require the hiring firm to effectively screen the new employee from the matter.

The committee notes there is no "one size fits all" screen; the right measures depend on factors like the size of each firm and the nature of the employee's prior work. It offers a non-mandatory list of possible screening elements (educating the staffer about confidentiality and not discussing the prior-firm work, confirming no files were brought over, instructing other personnel not to discuss the matter with the staffer, walling the staffer off from the file, a written confidentiality policy, and a note on the file cover). On the specific questions, B need not automatically withdraw; he may stay only with an effective screen, and the answer is the same whether X is a secretary or paralegal and regardless of X's duties, though those duties may shape what screening is needed.

In practice

The opinion holds that, under the Virginia rules as they stood at the time, the conflict rules do not impute a non-lawyer staffer's knowledge to the hiring firm, so hiring opposing counsel's secretary or paralegal is not an automatic disqualification. Per the opinion, the hiring firm's obligation is to effectively screen the new employee from the matter under Rule 5.3, and the appropriate screen is fact-specific rather than a fixed checklist. The committee's list of screening elements is offered as a suggestion, not a mandatory or exhaustive requirement.

Common questions

Q: Does hiring opposing counsel's secretary force the firm to withdraw?

A: The opinion says no. Rules 1.7 and 1.9 apply only to lawyers, so hiring a non-lawyer staffer does not automatically disqualify the firm; it may stay in the case with an effective screen.

Q: Does it matter whether the new hire is a secretary or a paralegal?

A: The opinion says no. The answer is the same whatever the staffer's title or duties, though the duties may affect what screening measures are needed.

Q: What does the firm have to do to keep the case?

A: The opinion says the firm must effectively screen the new employee from the matter under Rule 5.3, absent the opposing party's consent. It lists possible screening steps but stresses they are suggestions, not requirements.

Q: Can the hiring firm use what the staffer learned at the old firm?

A: No. The opinion says any attempt by the hiring lawyers to learn or use confidential information the staffer acquired about a former employer's client would violate Rule 5.3 (and Rule 8.4(a)).

Background and rules framework

The opinion interprets Rule 1.7 and Rule 1.9 (Model Rules 1.7 and 1.9, current- and former-client conflicts) as applying only to lawyers, and centers on Rule 5.3 (Model Rule 5.3, responsibilities regarding non-lawyer assistants) and its confidentiality-supervision duty, with Rule 8.4(a) (acting through another). It follows LEO 745 and adopts the majority screening approach of ABA Informal Op. 88-1526.

Citations and references

Rules of Professional Conduct:

• Model Rule 5.3 / Virginia Rule 5.3 (supervision of non-lawyer assistants; confidentiality)
• Model Rule 1.7 / Virginia Rule 1.7 (current-client conflicts)
• Model Rule 1.9 / Virginia Rule 1.9 (former-client conflicts)
• Model Rule 8.4 / Virginia Rule 8.4(a) (violating the rules through another's acts)

Other opinions cited:

• ABA Informal Op. 88-1526 (screening non-lawyer staff hired from opposing counsel)
• Virginia LEO 745 (no conflict when hiring opposing counsel's non-lawyer staff)

See also

• VA LEO 1832: Prospective Client Tells Only Secretary
• ABA Formal Op. 95-393: Client Files to Nonlawyer Bosses
• ABA Formal Op. 08-451: Outsourcing Legal Services

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1800.pdf

Original opinion text

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

Committee Opinion
October 8, 2004
LEGAL ETHICS OPINON 1800

ARE NON-ATTORNEY STAFF SUPPORT
SUBJECT TO THE CONFLICTS OF INTEREST
PROHIBITION?

You have presented a hypothetical situation in which Attorneys A and B represent opposing
parties in pending litigation. A’s two-member firm used secretary X for all secretarial work for
the office, including the present litigation. A’s firm fired X. The following week, Attorney B’s
firm, also a two-lawyer office, hires X as a secretary.
With regard to the facts of your inquiry, you have asked the following questions:
1) Is there a conflict of interest requiring B’s withdrawal from the litigation?
2) Would the answer to question one differ if X were a paralegal rather than a
secretary?
3) Would the answer to question one differ if X met alone with A’s client
when the client reviewed and signed discovery responses?
4) Would the answer to question one differ if X’s only duty for B on the
litigation at issue was to answer the telephone?
The fundamental issue for this series of questions is whether an attorney’s hiring of opposing
counsel’s secretary creates an impermissible conflict for the hiring attorney. The general conflict
of interest provisions in the Rules of Professional Conduct are Rules 1.7 and 1.9, dealing with
current and former clients, respectively. Those rules state as follows:
RULE 1.7

Conflict of Interest: General Rule

(a) A lawyer shall not represent a client if the representation of that
client will be directly adverse to another existing client, unless:
(1) the lawyer reasonably believes the representation will not
adversely affect the relationship with the other client; and
(2) each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that
client may be materially limited by the lawyer's responsibilities to another
client or to a third person, or by the lawyer's own interests, unless:
(1) the lawyer reasonably believes the representation will not be
adversely affected; and
(2) the client consents after consultation. When representation of
multiple clients in a single matter is undertaken, the consultation shall

Committee Opinion
October 8, 2004
include explanation of the implications of the common representation and
the advantages and risks involved.
RULE 1.9

Conflict of Interest: Former Client

(a) A lawyer who has formerly represented a client in a matter shall not
thereafter represent another person in the same or a substantially related matter
in which that person's interests are materially adverse to the interests of the
former client unless both the present and former client consent after
consultation.
(b) A lawyer shall not knowingly represent a person in the same or a
substantially related matter in which a firm with which the lawyer formerly
was associated had previously represented a client
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by
Rules 1.6 and 1.9(c) that is material to the matter; unless both the present
and former client consent after consultation.
(c) A lawyer who has formerly represented a client in a matter or whose
present or former firm has formerly represented a client in a matter shall not
thereafter:
(1) use information relating to or gained in the course of the
representation to the disadvantage of the former client except as Rule 1.6
or Rule 3.3 would permit or require with respect to a client, or when the
information has become generally known; or
(2) reveal information relating to the representation except as Rule
1.6 or Rule 3.3 would permit or require with respect to a client.
Each paragraph of these rules begins with the clear phrasing, “a lawyer.” There are no
paragraphs in these rules directed at non-lawyer staff, nor are there any paragraphs addressing a
lawyer hiring non-lawyer staff. Nothing in Rules 1.7 and 1.9 creates a conflict of interest for an
attorney hiring non-lawyer staff. This committee declines to adopt the conclusion drawn in a
minority of states that Rules 1.7 and 1.9 can be read, despite their clear language to the contrary,
to apply to support staff as well as attorneys. 1
This application of the current Rules of Professional Conduct is in line with a previous opinion
finding that under the former Code of Professional Responsibility no conflict of interest arose for
1

See Zimmerman v.Mahaska Bottling Co. 19 P.3d 784 (Kan. 2001); D.C. Ethics Op. 227 (1992); and Kansas Ethics
Op. 90-5 (1990).

Committee Opinion
October 8, 2004
an attorney hiring non-lawyer staff of the opposing counsel’s firm during the course of the
representation. See, LEO 745. Nonetheless, the Committee cautioned in that opinion, and
reiterates here, that the hiring attorney must be mindful of the ethical supervisory duties
regarding support staff.
Rule 5.3 governs an attorney’s ethical responsibilities regarding non-lawyer assistants. As
explained in the Comment to the rule:
A lawyer must give such assistants appropriate instruction and supervision
concerning the ethical aspects of their employment, particularly regarding the
obligation not to disclose information relating to representation of the client…”
Thus, Attorney A and his partner should have made sure secretary X understood during his
employment with the firm the critical importance of maintaining client confidentiality.
Similarly, when X joined attorney B’s firm, those attorneys should have made sure X understood
that principle; any attempt by attorney B or his firm members to learn or use the confidential
information acquired by X regarding a client of his former employer would be in violation of the
requirements of Rule 5.3. 2 A minority of states have concluded that nothing more specific is
required than a general nod to this Rule 5.3 supervisory duty. 3 However, this committee prefers
the position taken in a majority of states, which is outlined in ABA Informal Op. 88-1526. 4 That
position interprets Rule 5.3 such that the hiring firm must effectively screen the new employee
with regard to the matter in question to ensure Rule 5.3 compliance.
Numerous factors will determine what is necessary for effective screening in any given
instance; the size of the original firm, the size of the hiring firm, and the nature of the work
performed by the employee at the first firm are only some examples of what a firm should
consider in developing an appropriate screen. Thus, while there is no “one size fits all” screen,
this committee presents the following list of possible elements that could support an effective
screen:
1) educate the new staff member both about the general concept of client
confidentiality and should be specific that he not discuss his work at the former
firm on the matter in question;
2) confirm that the newly hired staff member brought no files or documents
with him regarding the matter in question;

2

Note that Rule 8.4(a) prohibits an attorney from violating an ethics rule indirectly through the act of another.
See Williams v. TransWorld Airlines, Inc., 588 F.Supp. 1037 (W.D.Mo. 1989); Alabama Ethics Op. 2002-01; and
South Carolina Ethics Op. 93-29 (1993).
4
See also Kapco Mfg. Co., Inc. v. C & O Enter., Inc. 637 F. Supp. 1231 (N.D. Ill. 1985); Daines v. Alcatel, 194
F.R.D. 678 (E.D. Wash. 2000); Herron v. Jones, Inc., 637 S.W.2d 569 (Ark. 1982); Smart Industries Corp. Mfg. v.
Yuma County Superior Court, 876 P.2d 1176 (Ariz. Ct. App. 1994); Liebowitz v. Eighth Judicial District, 78 P.2d
515 (2003); Hayes v. Central Orthopedic Specialists, Inc. Okla. No. 96,663 (4/23/02); In re American Home
Products Corp., Tex. No. 97-0654 (1998); Maine Ethics Op. 186 (2004); Illinios-Chicago Ethics Op. 93-5;
Tennessee Ethics Op. 2003-F-147; New Jersey Ethics Op. 665 (1992); and Vermont Ethics Op. 92-12.
3

Committee Opinion
October 8, 2004
3) educate all of the attorneys and other staff members not to discuss the
matter in question with that new staff member;
4) preclude in some practical way access to and/or involvement with the
pertinent file by the staff member;
5) develop a written policy statement regarding confidentiality, which would
include that the above steps are to be followed whenever staff members are
hired from an opposing counsel’s firm; and
6) note, on the cover of the file in question, the key information regarding
confidentiality.
To reiterate, the committee presents this list as a suggestion; the list is not meant to be
mandatory or exhaustive.
In conclusion, in answer to your first question, Attorney B is not automatically required to
withdraw from the representation merely for having hired his opponent’s secretary. Absent
consent from the opposing party, Attorney B could remain in the case only if his firm effectively
screened the secretary with regard to the matter in question. As to questions two through four,
the answer to question one applies regardless of the specific title or duties of the non-lawyer
staff. Those duties could however determine what screening elements were needed.
This opinion is advisory only, based only on the facts you presented and not binding on any
court or tribunal.
Committee Opinion
October 8, 2004