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Opinion #186. Screening of Non-Lawyer Staff to Avoid Conflict
Issued by the Professional Ethics Commission
Date Issued: July 22, 2004
Pursuant to M. Bar R. 11(c)(1), Bar Counsel poses two questions to the Professional Ethics Commission, requesting an advisory opinion on each. First, can a lawyer use screening with respect to a non-lawyer assistant to avoid conflicts and as a means of fulfilling his or her duties under M. Bar R. 3.13(c)? Second, what does screening mean in this context?
We illustrate the concept of screening through a hypothetical. Assume that Law Firm A hires a new secretary. The secretary previously worked for Law Firm B. While at Law Firm B, the secretary worked on matters for Client X. After the secretary joins Law Firm A, the firm is retained to represent Client Y in litigation against Client X. The secretary was privy to confidential information pertaining to Client X that is relevant to the pending litigation and that was acquired through the prior employment with Law Firm B. Can Law Firm A avoid a disqualifying conflict of interest under the Bar Rules through screening, i.e., by isolating the secretary from any involvement in the case and ensuring that none of the confidential information the secretary possesses gets imparted to the firm?
This question calls upon us to consider whether the imputed disqualification rules apply to conflicts of non-lawyer staff of a law firm. If these rules do apply on account of the secretary’s knowledge, see M. Bar R. 3.4(b)(3)(i) and 3.4(d)(1)(ii), then Law Firm A would not be able to handle the case without the informed consent of Client X. If the imputed disqualification rules do not apply, then Law Firm A would be able to handle the case, but it would have to take steps to ensure that its lawyers and other staff members do not become privy to the secretary’s knowledge.
This scenario represents a situation that is not at all uncommon in Maine’s legal community. Secretaries, paralegals and other non-legal staff members frequently leave one law firm and later work for another. A law firm must be sensitive to potential conflicts of interest when hiring non-legal staff members. Accordingly, the lawyer or law firm during the hiring process should make reasonable efforts to obtain information to determine whether there is a potential for conflicts and have systems and procedures in place to detect and manage conflicts after a new employee joins the firm. With this preface, we proceed to answer Bar counsel’s questions.
Screening Of Non-Lawyers Is Generally Permissible
We believe that screening of non-lawyer staff employed by a law firm is generally permissible under the Maine Bar Rules to avoid conflicts of interest presented by that staff, and it may be used to fulfill a lawyer's responsibilities under M. Bar R. 3.13(c), subject to certain qualifications discussed below. In reaching this conclusion, we start by examining the interplay between M. Bar R. 3.4(b)(3)(i) and M. Bar R. 3.4(d)(1)(ii) and M. Bar R. 3.13(c).
M. Bar R. 3.4(b)(3)(i), relating to imputed disqualification, states: Except as otherwise provided in these rules, if a lawyer is required to decline or withdraw from representation under these rules for reasons other than health, no partner or associate, and no lawyer affiliated with the lawyer or the lawyer's firm, may commence or continue such representation.
By its very terms, this imputed disqualification rule applies only to partners, associates and other affiliated lawyers of a “lawyer.” Similarly, M. Bar R. 3.4(d)(1)(ii) states that when a “lawyer” becomes affiliated with a firm, the firm shall not accept employment adverse to a former client of the lawyer or the lawyer’s previous firm if the representation involves a former representation on which the lawyer personally worked or if the lawyer acquired confidences or secrets that are material to the representation. Neither rule refers to non-lawyers employed by a law firm.
M. Bar R. 3.13 was promulgated subsequent to the adoption of the above cited imputed disqualification rules. Bar Counsel's inquiry raises the question whether the wording of Rule 3.13(c) implies that in order to "make reasonable efforts to ensure that a [non-lawyer assistant's] conduct is compatible with the professional obligations of the lawyer," the firm must impute unto itself "conflicts" or other disqualifying issues presented by non-lawyer staff.
We think not. First, we do not believe that “reasonable efforts” require such an imputed disqualification. There are other ways, such as through screening as discussed more fully below, by which the law firm can ensure that the non-lawyer’s conduct remains compatible with the professional obligations of a lawyer. Second, we believe that, in promulgating Rules 3.4(b)(3)(i) and 3.4(d)(1)(ii), the intent of the drafters was clear that the imputed disqualification rules applied only to lawyers. Third, we do not believe that, in adopting Rule 3.13, the drafters intended to change the way the imputed disqualification rules should work. Indeed, the Advisory Committee note to the rule states that Rule 3.13 "does not so much announce new principles as it serves to fill in areas of the Maine Bar Rules that are now left to the common sense of law firms and the Board of Overseers." In our experience, responsible law firms historically have effectively used screening to deal with conflict and related issues presented by nonlawyer staff. Finally, we note that Rule 3.13 was a verbatim adoption of ABA Model Rules 5.1, 5.2 and 5.3. We think it relevant that the comment to ABA Model Rule 1.10 (relating to imputation of conflicts of interest) specifically states that the imputed disqualification rule "does not prohibit representation by others in a law firm where the person prohibited from involvement in the matter is a nonlawyer, such as a paralegal or legal secretary." ABA Model Rule 1.10, comment 4.
The next question is what should effective screening entail? How should a law firm deal with conflicts and similar disqualifying issues presented by non-lawyer staff? In answering this question, we find ABA Informal Opinion 88-1526 (1988) instructive. In that opinion, the ABA Committee on Ethics and Professional Responsibility considered the lawyer's obligations under Rule 5.3 with respect to the issue of screening. The Committee concluded that the measures utilized under Model Rule 5.3 should involve admonitions to non-lawyer assistants to be alert to all legal matters, including lawsuits, in which any client of the individual's former employer has an interest. The Committee advised that the non-lawyer should be cautioned: (1) not to disclose any information relating to the representation of a former employer’s client to the new employer; and (2) that the non-lawyer should not work on any matter on which he or she worked for a prior employer or respecting which he or she has information relating to the representation of the client of the former employer. In addition, when the new firm becomes aware of such matters, it must take reasonable steps to ensure that the non-lawyer employee takes no action and does no work in relation to matters on which that employee worked in the prior employment, absent informed consent from the former firm’s client.
The ABA Committee also recognized that there are limited circumstances that may require that a firm be disqualified or withdraw from representing a client when the firm employs a non-lawyer who formerly was employed by another firm. These circumstances are present either: (1) where information relating to the representation of an adverse party gained by the non-lawyer while employed in another firm has been revealed to lawyers or other personnel in the firm; or (2) where screening would be ineffective or the non-lawyer necessarily would be required to work on the other side of the same or substantially related matter on which the non-lawyer worked or with respect to which the non-lawyer has gained information in the context of former employment relating to the representation of the adverse party. In those circumstances, the firm must withdraw from representing the client, unless the client of the former employer consents to the continued representation of the person with adverse interests after being apprised of all the relevant factors.
We now discuss two hypothetical scenarios for illustration purposes. Scenario One: A secretary moves from Law Firm A to Law Firm B. While at Law Firm A, the secretary worked on a case for Client 1 against Client 2. Client 2 is represented by Law Firm B. Scenario Two: A firm paralegal is a member of the Board of a non-profit entity against which the paralegal’s law firm is now involved in litigation. How should the law firm deal with these two situations?
Screening means shielding the non-lawyer staff person from any personal participation in the matter and taking additional steps to avoid any violation by that person of a lawyer’s obligations under the Code of Professional Responsibility. In Scenario One, the secretary should be shielded from any involvement in the case involving Clients 1 and 2, and should be instructed to avoid all discussion within Law Firm B about the case and about facts known concerning Client 1 in order to avoid inadvertent disclosure of Client 1’s confidences and secrets and of Law Firm A’s work product. In Scenario Two, the paralegal should similarly be shielded from any involvement in or knowledge about the case, and should be instructed to abstain from any involvement in discussion or decision making in his or her capacity as a Board member of the non-profit entity with respect to issues related to the case. Other precautionary measures may also be necessary to avoid the risk that the personal interests of the paralegal or the paralegal’s obligations to the non-profit entity might in some way adversely affect the representation provided by the lawyer or firm or might otherwise cause harm to the client.
 Rule 3.13(c) states:
(c) Responsibilities Regarding Non-lawyer Assistants. With respect to a non-lawyer employed or retained by or associated with a lawyer:
(1) A partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;
(2) 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
(3) A lawyer shall be responsible for conduct of such a person that would be a violation of the Code of Professional Responsibility if engaged in by a lawyer if:
(i) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(ii) the lawyer is a partner 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.
 We also suggest that the Maine lawyer consider in each case whether disclosure of conflict-like nonlawyer assistant relationships should be made to the lawyer’s client. Rule 3.4(a)(1) requires disclosure prior to representation of “any relationship or interest of the lawyer or of any partner, associate or affiliated lawyer, that might reasonably give rise to a conflict of interest” and it requires continuing disclosure of “any information that, in light of the circumstances arising after the commencement of representation, might reasonably give rise to such a conflict of interest.” While the rule does not specifically mention disclosure of relationships or interests of non-lawyer staff, a cautious lawyer will be inclined to disclose those relationships and interests, as well as the screening methods to be used, if those relationships and interests would reasonably influence the client in the selection of the lawyer or would otherwise reasonably be of concern to the client.
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