James Myers said 47 states allow ethical screens for nonattorney conflicts. (John Disney/Daily Report)
The Georgia Supreme Court this week pondered an issue of first impression: whether a paralegal who works on a case then switches to the other side’s firm automatically disqualifies her new employer from the litigation.
At issue is whether firms can use a so-called ethical screen to wall off a nonlawyer from the firm’s work on a case in order to prevent the nonlawyer’s conflict of interest from disqualifying others at the firm. The Supreme Court last year issued an opinion in another case that appeared to leave open questions about firms using ethical screens to avoid imputation of lawyer conflicts. The state’s lawyer ethics rules don’t specifically address how to handle conflicts of law firm employees who are not attorneys.
In the Fulton County wrongful death case heard by the state Supreme Court on Tuesday, an appeals court panel last year said a screen could be used to prevent a paralegal’s conflict from being imputed to her new firm. The case was brought by the sister and son of Monica Renee Williams, who was shot and killed in 2010 at a downtown Atlanta apartment complex where she lived. Williams’ family retained an Atlanta firm, Hanks Brookes, to pursue claims associated with her death.
Before any lawsuit was filed, the insurer for the company that owned the apartment complex, Urfa-Sexton, retained another Atlanta firm, Insley & Race, to represent it in the matter. In November 2011, Williams’ estate and her son sued Urfa-Sexton alleging the owner had been negligent in providing security for the apartment complex.
Kristi Bussey was a paralegal and friend of Williams who worked on the matter while she was at Hanks Brookes before suit was filed. She later left the firm, ultimately landing a job at Insley & Race in March 2011. James Myers, an Insley & Race partner who argued the case at the Supreme Court on Tuesday, has said that the firm generally looks for conflicts in hiring staff but didn’t pick up on Bussey’s involvement in the Williams matter right away because Hanks Brookes usually represents defendants, not plaintiffs.
After Bussey brought the problem to the attention of Insley & Race partners in October 2011, about a month before the lawsuit was filed, the firm implemented various screening measures. The firm has said it restricted Bussey’s access to the law firm’s electronic and physical files on the Williams matter and told her not to talk to anyone at the firm about the case. The firm also told Hanks Brookes about the issue.
In January 2012, the plaintiffs filed a motion to disqualify Insley & Race, saying Bussey’s employment created a conflict of interest that disqualified the whole firm. Fulton State Court Judge Fred Eady denied the motion, and a panel of the Court of Appeals affirmed that ruling in July.
After that ruling was issued, State Bar of Georgia General Counsel Paula Frederick told the Daily Report she didn’t know how the question should be resolved, noting that although a paralegal shouldn’t reveal secrets about the files she worked on at a prior job, the rules don’t address whether a screen can cure a conflict for a paralegal.
At the same time, Frederick was telling the Supreme Court in another matter that ethical screens for lawyer conflicts are allowed only in the case of a lawyer who moves from government work or the judiciary to private practice. That was in response to other lawyers asking the state Supreme Court to clarify an April decision that apparently prohibited public defenders within the same circuit from representing co-defendants. The other lawyers wanted the justices to say their ruling didn’t jeopardize large firms’ practice of using ethical screens when conflicts arise.
The high court later backed away from answering whether representing co-defendants is flatly against the rules and said it didn’t purport to answer “whether multiple representations are absolutely prohibited upon imputation of a conflict” even with the use of a screen.
During Tuesday’s arguments, without making clear their position on screens generally, justices questioned whether the rules for lawyers and nonlawyers should be the same.
Hanks Brookes’ co-counsel on the case, Atlanta solo practitioner Michael Mills, told the justices that booting Insley & Race off the case is the only option.
He said the states were split nearly evenly as to whether they allow screens to cure lawyer conflicts. “Georgia specifically rejected screening when the rules were adopted,” said Mills.
As for screens for nonlawyer conflicts, Mills noted that Alabama had issued an advisory opinion that said screens don’t resolve such a situation. He added that when he called the Georgia bar’s hotline about the issue in his case, “The response I got was ‘Screening? What screening? We don’t have any screening in Georgia.’”
But, Justice David Nahmias pointed out, Georgia’s rules do allow for screens in certain contexts. Nahmias said the reason for allowing screens in the case of a former government lawyer who moves into private practice is in part to give people the ability to secure new jobs. “What necessarily requires us to apply the rule for lawyers to nonlawyers?”
“I think the likelihood of a nonlawyer being conflicted out is relatively low,” Mills replied, pointing to the high number of firms in the Atlanta area where a nonlawyer could work.
Justice Harold Melton pressed Mills to point to language in the ethical rules that supports his position, adding that nothing in the rules specifically says that limits on screening applies to paralegals.
“I would agree there’s no clear answer as stated in the rules,” said Mills. But he pointed to language in the rules that says lawyers must see that the actions of their agents are compatible with the lawyers’ ethical obligations.
“Certainly paralegals in other states have been held to be conflicted out of similar situations where they’ve actually worked on the case,” he added.
Defending Urfa-Sexton’s right to keep Insley & Race on the case, Myers said the American Bar Association in 2009 put forth a new model rule that allows for screening for attorneys and the trend is to allow ethical screens for not only attorneys but also nonattorneys. He added that out of the 50 states and the District of Columbia, 47 jurisdictions allow for screens for nonattorney conflicts.
Justice Carol Hunstein asked Myers why states were more willing to allow screens for nonlawyers than lawyers. Myers replied that lawyers have more of a stake in a case, have more control over what they work on and have portable clients. Nonattorneys don’t get involved as deeply, he said.
“This particular paralegal was very involved,” Hunstein pointed out.
“She was involved,” Myers acknowledged. But he said not allowing screening to cure nonattorney conflicts at all is a “very harsh result.” He raised hypotheticals such as a secretary who overheard a confidential conversation while delivering water or a docket clerk who read a document on the way to court. In the case of Bussey, he said, Insley & Race’s screening measures “ameliorated” any fears that Bussey’s conflict would infect the entire firm.
Nahmias asked Myers to address the language in the rules that says lawyers must ensure their agents’ actions are compatible with lawyers’ obligations. Myers replied that was different from saying all ethical rules that applied to lawyers also applied to their nonlawyer staff. In the case of nonattorney conflicts, he said, the language means an attorney must ensure an ethical screen is working and that no confidences are revealed.
“In terms of the specific facts of this case, it’s our position that the screening was appropriate,” Myers concluded. “No confidential information has been exchanged.”
The case is Hodge v. Urfa-Sexton, No. S13G1626.