MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1990-17
Conflicts - Secretary leaving firm to join another when litigation is pending between the firms
Your letter asks about the duties and obligations of your firm which has hired a secretary who was formerly employed by lawyers who are actively engaged in litigation that was pending during the secretary's employment by those lawyers against clients currently represented by your firm. Your letter notes that the secretary was engaged in response to classified advertising, that no attempt has been or will be made to obtain information as to her former employers' work product or other confidential data, and that he secretary's duties are "limited to typing".
Rule 5.3 of the Maryland Rules of Professional Conduct provides:
"With respect to a nonlawyer employed or retained by or associated with a lawyer:
- 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;
- a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and
- a lawyer shall be responsible for conduct of such a person that would be a violation of the rules of professional conduct if engaged in by a lawyer if:
- the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
- 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."
The Comment to Rule 5.3 is likewise instructive:
"Comment. - Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and para-professionals. Such assistants, whether employees or independent contractors, act for the lawyer in 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 information relating to representation of the 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."
The problem you pose has been dealt with comprehensively in ABA Informal Opinion 88-1526, a copy of which we are enclosing for your guidance. The headnote to the ABA Opinion states:
"A law firm that employs a nonlawyer who formerly was employed by another firm may continue representing clients whose interests conflict with the interests of clients of the former employer on whose matters the non-lawyer has worked, as long as the employing firm screens the nonlawyer from information about or participating in matters involving those clients and strictly adheres to the screening process described in this opinion and as long as no information relating to the representation of the clients of the former employer is revealed by the nonlawyer to any person in the employing firm. In addition, the non-lawyer's former employer must admonish the nonlawyer against revelation of information relating to the representation of clients of the former employer."
The Committee is aware that a difference of view exists among various courts and among state ethics committee respecting utilization of screening or a "Chinese Wall" to insulate lawyers (e.g. Parker v. Wolkwagenwerk Aktiengesellschaft, Kan. Sup. Ct., No. 63, 452, 11/1/89; Michigan State Bar Committee on Professional and Judicial Ethics, Opinion R-4, 9/22/89) and lawyers' employees (e.g. Esquire Care Inc. v. Maguire, Fla. Dist. Ct. App., 2d Dist., No. 88-1426, 9/30/88; Alabama State Bar Disciplinary Commission, Opinion 89-91, 8/7/89) who move from one law firm to another while litigation is pending or anticipated between clients of the two firms. Most of those Opinions are fact-sensitive, with the result often depending upon such factors as the extent of confidential information available to the moving person, the moving person's direct involvement in the case, and the likely effectiveness of the screening mechanism. With respect to non-lawyers particularly, our Committee believes that those Opinions which approve the use of effective screening devices represent the emerging and desirable result.
References: 5.3; Comment to 5.3; ABA Informal Opinion 88-1526;