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Ethics Advisory Opinion 07-02

April 13, 2007

South Carolina Bar Ethics Advisory Opinion 07-02

SC Rules of Professional Conduct: 5.3

Date: April 20, 2007

Facts
Lawyer is a partner in a general practice firm that includes civil litigation, criminal defense and immigration. The criminal matters are often prosecuted by the Solicitor’s Office. Lawyer wishes to hire a secretary/paralegal employed by the local Solicitor’s office for part-time work, assisting in processing immigration cases after hours. In her full-time job, this secretary is assigned as support staff for three prosecutors. The Solicitor has given permission to the lawyer to hire the secretary to work part-time on immigration cases.

The secretary would work strictly on immigration matters for local firm and would not have access to any criminal files. No criminal matters will be discussed with her by any member or employee of local firm.

Question
Is it ethically permissible for a lawyer in private practice to hire a non-lawyer employee of the Solicitor’s Office to work concurrently in his office on immigration matters while she continues full time work for the Solicitor’s Office?

Summary
Such an arrangement entails a risk of potential violations of the confidentiality and conflict of interest provisions of the Rules of Professional Conduct. Nevertheless, subject to strict screening, confidentiality, and supervision procedures, it is not prohibited by the Rules of Professional Conduct.

Opinion
The starting point for analyzing this issue is Rule 5.3 of the Rules of Professional Conduct:

With respect to a nonlawyer employed or retained by or associated with a lawyer:

. . .

(b) 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

(c) 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:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority 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.

This Rule imposes upon the inquirer the obligation of ensuring that the assistant undertake no course of conduct that a lawyer would be ethically prohibited from undertaking, such as creating a conflict of interest by obtaining confidential information.

The language of Rule 5.3 suggests a two-tier approach to considering this inquiry: first, determining whether a lawyer could engage in the proposed conduct described; and second, evaluating whether there is any reason to treat such conduct differently in the case of the assistant.

The risk that a non-lawyer employee could influence a criminal prosecution for the benefit of a private client is far lower than it would be in the case of a lawyer. The Committee believes that a non-lawyer employee strictly screened from any criminal matters, subject to clear confidentiality provisions with respect to all client information (preferably in a signed writing), and under proper supervision, may work in the capacity proposed by the inquirer. The key requirement is that the non-lawyer place client confidentiality above any obligations to the Solicitor’s Office.

inally, it bears mention that the inquirer has asked specifically about an immigration practice. Due to the nature of immigration practice, most legal work involving a client’s attempt to gain favorable immigration status will require the reviewing immigration authorities to determine the applicant’s past and current criminal history. In some cases, immigration law practitioners are asked to obtain changes in immigration status for clients currently in violation of immigration laws. Thus, there is an institutional overlap between criminal and immigration law. This overlap underscores the importance of strict confidentiality with respect to all client matters. The non-lawyer employee should be hired for immigration work only if he or she has acknowledged that such confidentiality obligations do not conflict with any obligations owed to the Solicitor’s Office.

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