MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2008-08
Issues Arising from Prior Employment of a Paralegal by Opposite Party in Litigation
You have asked this committee to opine on the manner in which your firm recently handled a perceived conflict of interest. While your inquiry sets forth many facts, we will confine ourselves to the relevant ones. Apparently your firm, in the midst of representing a client in a litigation matter, discovered that a firm paralegal had previously worked on this same matter for an attorney who represented one of the opposing parties in the action. Although your firm’s practice was to circulate a memo to all firm attorneys describing any new matter, listing the parties on both sides, describing the nature of the action and inquiring about conflicts or potential conflicts, these memos were not distributed to non-lawyers in the firm.
Your firm immediately wrote its client describing the situation and asking the client for a waiver of any conflict of interest in order that the firm could continue in the case. When your client failed to respond, telephone contact was made and your client refused to consent to any waiver. Subsequently, your firm moved to strike its appearance in the matter and the motion was ultimately granted.
You asked whether the firm’s actions confirmed to the Maryland Rules of Professional Conduct; you also requested us to inform the firm if there were any other actions it could have taken and whether there are any further duties owed to the client.
Rule 1.10(a) of the Maryland Lawyers’ Rules of Professional Conduct (“the Rules”) is the general rule of imputed disqualification and refers only to the conduct of lawyers. It does not apply to non-lawyer employees. As stated in the comments “the Rule . . . does not prohibit representation by others in the law firm where the person prohibited from involvement in a matter is a non-lawyer, such as a paralegal, or secretary. However, the non-lawyer must be screened from any personal participation in the matter. In Informal Opinion 88-1526 (6/22/88) the ABA Standing Committee on Ethics and Professional Responsibility recognizes the transient nature of lawyers and non-lawyer employees and states as follows:
“A law firm that employs a non-lawyer who formerly was employed by another firm may continue representing the 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 non-lawyer 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 non-lawyer to any person in the employing firm. . . “
Despite the inapplicability of the Rules to non-lawyers, Rule 5.3(a) imposes an obligation upon those members of a firm with managerial authority to make “reasonable efforts” to ensure that the firm has in place measures to ensure that the non-lawyer’s conduct is compatible with the professional obligation of the lawyer. As noted by comment 2, a firm should design internal policies and procedures that are compatible with the Rules, this includes procedures that are designed to detect and resolve conflicts of interest. In light of the transient nature of both attorneys and non-lawyer staff, it is not inconceivable that conflict issues will arise in the course of representing clients. Therefore, a firm’s conflict procedure should not be limited to lawyers.
The committee assumes that, going forward, the firm’s conflict check procedure will include some way to assure that non-lawyers become aware of information concerning new matters in such a way as to reasonably assure that the confidences of the clients of former employees are protected.
Rule 1.6 imposes an obligation to maintain the confidentiality of client information related to the representation. This obligation continues even after the firm has withdrawn its appearance. Aside from screening non-lawyer employees, the firm should also make certain that all lawyers and non-lawyers understand that the obligation to maintain client confidentiality continues even after the employee is no longer with the firm.
Your final question to the Committee whether the firm owes any additional obligation to the Client, presents a legal question which is outside the purview of this Committee.
We thank you for your inquiry and hope that the foregoing is responsive. Opinions of the Committee may be obtained from the Maryland State Bar Association website: www.msba.org.