UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 91-12
Individual A previously worked as a secretary for a corporation that is an adverse party in litigation involving clients of Lawyer B. Lawyer B now wishes to hire A as a paralegal, two months after A last worked for the corporation. A did not serve in a decision-making capacity in the previous employment, is not in possession of any corporate documents, has no privileged information that would not be otherwise discoverable, and is unlikely to be called as a witness.
Question:
Can a lawyer hire a paralegal who previously worked as a secretary for a corporation that is an adverse party in litigation involving clients of the lawyer?
Summary:
A lawyer who represents a client in a matter adverse to a corporate party may hire as a paralegal a former employee of the corporate party, at least when the paralegal had no decision making role while employed by the corporation, possesses no protected information, and is not likely to be called as a witness in the litigation.
Opinion:
Although the Rules of Professional Conduct address various situations in which a lawyer changes jobs, they do not directly address the question presented involving a non-lawyer employee. Several rules, however, are instructive. First, Rule 4.2 addresses the permissible limits of contact by a lawyer with other parties represented by counsel, including current employees of corporate parties. The comment to that rule prohibits direct contact by a lawyer, without the consent of counsel, with any person having managerial responsibility within an organization, with any person whose actions may be imputed to the organization, or with any person whose statements may bind the company. The comment, however, does not directly purport to limit contact with any former employee of a corporate party.
There has been some disagreement in the courts regarding whether Rules 4.2 bars contact with former employees. Compare Niesig v. Team I, 559 N.Y.S. 2d 493 (1990) (holding the rule does not apply to contacts with former employees) with Porter v. Arco Metals, 642 F. Supp. 1116 (D. Mont 1988) (barring contact with former employees who had managerial responsibility regarding the matter in litigation). A recent formal opinion of the American Bar Association, however, adopts the view that a lawyer is free to communicate with former employees of an adverse corporate party about the subject of the representation without the consent of the organization's lawyer, at least so long as the lawyer does not attempt to induce disclosure of information privileged as attorney-client communications. ABA Formal Op. # 91-359 (Mar. 22, 1991). Accordingly, the proposed contact with a former employee of the corporation does not appear to violate Rule 4.2, particularly given the fact that A had no decision making responsibilities.
Because the contact with the former employee goes beyond a mere interview and includes hiring the former employee to a position in B's law firm, it also is appropriate to consider Rule 1.9 and 5.3. Rule 1.9 addresses the somewhat analogous situation in which a lawyer moves between law firms. Rule 5.3, in turn, requires a lawyer to ensure that the conduct of a nonlawyer assistant is compatible with the professional obligations of the lawyer and that the nonlawyer assistant does not engage in conduct that would be a violation of the ethical rules if engaged in by the lawyer.
Under Rule 1.9, a lawyer hired by a new firm cannot, without consent, represent a person in a matter substantially related to a matter in which the lawyer's prior firm represented an adverse party, if the lawyer had acquired material, protected information during the prior representation. It would seem to follow, applying Rule 5.3, that a paralegal hired by a law firm could not work on a matter if the paralegal had acquired protected information in a previous job with an adverse party corporation. The only opinion found by the Committee that is on point is an advisory opinion of the Dallas, Texas, Bar Association rendered under the old Model Code, which concluded that a law firm representing a client in litigation against a corporation may hire a former employee of the corporation if the employee left the corporation before the litigation began, has no direct knowledge of the litigation or confidential information, and will not be a witness. Dallas Bar Assoc. Ethics Adv. Op. # 1989-3 (undated), summarized at ABA/BNA Lawyers' Manual on Professional Conduct 901:8492.
Insofar as Rule 1.9 focuses upon a lawyer's acquisition of protected information in resolving the analogous issue addressed in that rule, we believe, at least where the paralegal did not have any decision making authority in the prior employment, that the appropriate focus in the case presented should be upon whether the paralegal has privileged information that may be disclosed in the new employment. If not, we conclude that the proposed hiring would not violate any ethical rules. It should not matter that the paralegal was still employed by the corporation at the time the action was commenced.
This result is consistent with ABA Informal Opinion 88-1526, which addresses the movement of a paralegal between law firms. That opinion recognizes that "any restrictions on the nonlawyer's employment should be held to the minimum necessary to protect confidentiality of client information." It concluded that a firm should not be automatically disqualified from a matter even when it hires a paralegal who worked on the same matter at another firm. In order to avoid a breach of confidentiality, a paralegal who moves between firms simply should be screened from matters upon which the paralegal worked at the prior law firm. If a lawyer can hire a paralegal who had access to privileged information at a prior law firm representing an adverse party, there should be no prohibition here upon the lawyer hiring a former employee of the adverse party who was not privy to such information and who will not be a witness in the litigation.1 1 We point out that if the prospective employee was a likely witness favorable to the law firm's client, the lawyer should consider whether the apparent credibility of the witness might be adversely affected by the employment. The witness no longer would be independent, but would be an employee of the lawyer representing the party for whom the witness is testifying. The interest of the client might thereby be adversely affected.