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 93-29
Attorney A represents client X who is involved in a pending legal matter brought by her former husband Y. Y is represented by attorney B. From the beginning of attorney A's representation his only secretary prepared all correspondence, pleadings, affidavits, and conferences between client X and attorney A. The secretary engaged in numerous telephone conversations and person-to-person conversations with client X regarding the specific facts, allegations, and defenses involved in the litigation. Attorney A and secretary had numerous conversations regarding all facets of the case, both factual and legal.
Subsequently, secretary left the employment of attorney A and became employed by attorney B. The litigation is still pending and final hearing is scheduled. Recently, secretary contacted the new secretary of attorney A and requested that a document previously prepared by secretary be sent to attorney B. (The document was prepared by secretary while employed by attorney A.)
Questions:
1. Other than disclosure of these facts to client X, what other obligation or duty does attorney A have to client X?
2. Does attorney B have an imputed disqualification of future representation of client Y because of the employment of secretary?
3. Can attorney B continue representation of client Y solely by requiring secretary to do no further work on the case?
Summary:
1. Attorney A must take all steps he deems necessary to protect the confidentiality of information provided to him by client X.
2. Attorney B does not have an imputed disqualification solely because of the employment of secretary.
3. Attorney B can continue representation of client Y provided he makes reasonable efforts to ensure that secretary's conduct is compatible with his professional obligations.
Opinion:
Rule 5. 3 answers these questions. A lawyer is responsible for making reasonable efforts to ensure that nonlawyers employed by him conduct themselves in a manner compatible with the professional obligations of the lawyer, which, of course, includes compliance with the Rules of Professional Conduct. Consequently, attorney A is responsible for having and maintaining safeguards of confidential information provided to him by client X, both while secretary was employed by him and now that she is not, so that he is in compliance with Rule 1.6.
It does not appear that disclosure to client X of secretary's change of employment is required, though A may feel that he would prefer that X hear of this change from him first, if he feels this will be a source of apprehension to X. There seems little action X could take based on this information, since X has no control over attorney B and discharging attorney A would serve no purpose and probably be counterproductive. Attorney A's duties to X remain to provide zealous advocacy and to be vigilant to detect and prevent use of any confidential information to which secretary may have been privy.
The recent request by secretary for a document previously prepared by her may put attorney A on alert that secretary may be attempting, advertently or inadvertently, to use confidential information improperly, and attorney A may feel it his duty to bring this conduct and the possibility of future improper conduct to the attention of attorney B. If attorney A comes to believe that confidences of client X are being violated, appropriate motions may be necessary.
Attorney B has no imputed disqualification from further representation of client Y, however, since Rules 1.9 and 1.10 apply only when lawyers move between firms. These Rules imply that Rule 5.3 will provide a sufficient safeguard an to personnel moving between firms. The comment to Rule 1.9 is instructive: "If the concept of imputation were applied with unqualified rigor, the result would be radical curtailment of the opportunity of lawyers to move from one practice setting to another and of the opportunity of clients to change counsel." It would appear that even less restriction should apply to legal staff who are not even directly bound by the Rules.
In Advisory Opinion 91-12, the committee addressed the movement of a paralegal between law firms, citing ABA Informal Opinion 88-1526. The ABA has suggested that the paralegal at the new firm be screened from matters on which the paralegal worked at the old firm. If formal screening is not possible, Rule 5.3 requires the lawyer to make "...reasonable efforts to insure that the (employee's) conduct is compatible with the professional obligations of the lawyer...".