Firms should be cautious about confidentiality when paralegals depart.
My litigation paralegal, who has worked closely with me on a number of litigation cases, has recently been hired by a law firm that opposes me in a number of cases. What steps should that law firm take — or what steps should I take — to protect confidentiality and any conflict of interest?
Unfortunately, the Rules of Professional Conduct don't really cover paralegals. Confidentiality and conflicts are usually directed at the attorney and not the employees.
But there are provisions — Rule 5.1, titled "Responsibilities of Partners, Managers and Supervising Lawyers," Rule 5.2, titled "Responsibilities of Subordinate Lawyers," and Rule 5.3, titled "Responsibilities Regarding Non-Lawyer Assistants." Under Rule 5.3, a lawyer is responsible for the conduct of a paralegal or other nonlawyer employees at the firm where the lawyer is a direct supervisor or a partner in the firm.
As part of the lawyer's obligations, paralegals and other employees have to be given instructions on the legal ethics aspect of their employment, particularly information regarding attorney-client privilege and work product. Comment 1 to Rule 5.3 makes that abundantly clear. There should be internal procedures in place that nonlegal employees have to sign acknowledging ethical training and acknowledging they will comply with confidentiality and work product. But there are no specific rules regarding what happens when they change employment and go to an opposing firm.
There is an article in the Georgetown Journal of Legal Ethics, Volume 24, No. 3, "Protecting Client Confidences: Changing the Mechanisms for Preventing Paralegal Conflicts" by Tara O'Hanlon.
O'Hanlon notes that despite the fact that the Rules of Professional Conduct don't really cover the situation, the changing of an office by a paralegal could result in the disqualification of the law firm for which the paralegal now works.
O'Hanlon notes several different ways courts will approach this issue. Some courts treat the paralegals as if they are lawyers and therefore would require disqualification. Other courts require a showing that the paralegal had confidential information and material information. If that is proven, then the firm has the burden to rebut the presumption of prejudice by showing an adequate screening process was in place.
The article references the American Bar Association's Model Guidelines for the Utilization of Paralegal Services. The author notes that these rules generally require attorneys to instruct and take reasonable steps to ensure clients' confidences are preserved by paralegals. Those standards also require the law firm to establish internal policies and procedures designed to provide reasonable assurances that the paralegals act according to the Rules of Professional Conduct. Those guidelines also have procedures for screening.
Unfortunately for the various paralegal organizations, the standards of ethics of paralegals are not required by many law firms. The problem is no matter how well trained the paralegal is, once the paralegal leaves the firm, it is difficult to monitor him or her.
O'Hanlon suggests that the hiring firm is in the best position to prevent conflicts and the hiring firm should have an interest. If the firm is disqualified because of conflict or confidential information, there is obviously a loss of business and fees. The hiring process should involve discussions about potential conflicts and the opportunity to seek a waiver. If not, there should be a screening mechanism in place. O'Hanlon discusses the need for some standardization for screening processes is to protect confidentiality.
O'Hanlon concludes by suggesting that the Rules of Professional Conduct be amended to deal with the conflicts of paralegals and other nonlegal employees who leave.
O'Hanlon's concerns are real. The days of law office employees staying with a lawyer for 10 or 20 years, with rare exception, are long gone. Good paralegals get bored and want other experiences or change jobs just because of better economic circumstances. The old personal loyalty of the lawyer and the secretary or the lawyer and the paralegal seem to be declining. Recognizing this great mobility between firms, the legal profession must recognize the problems and potential conflicts. These can be resolved, not only through good training within the firm, but also by specific steps taken by the hiring firms to identify conflicts, seek waivers and to have an effective screening process in place immediately. The failure to do so could cause some serious financial problems or loss of income to the new firm if there is going to be disqualification because the paralegal was not screened but had confidential information.
There is a need for a revision of the Rules of Professional Conduct to deal with paralegals and other law office employees who leave for other employment. Any lawyer realizes a good paralegal knows as much about the case as the lawyer and perhaps more. A good paralegal often has access to very confidential information. It is now time for the rules to reflect the need to protect confidentiality and avoid conflict when a trusted paralegal leaves.
The rules don't regulate office romance, but firm policy should.
Now that lawyers are prohibited from having sexual relationships with clients under Rule of Professional Conduct 1.8, is there any similar provision about having sexual relations with employees of the law firm?
The answer is no, there is no such ethical prohibition. The prohibition about a lawyer having sexual relations with a client evolved over a number of years. Many people, including legal commentators, thought there was no need to have such a specific rule because other existing rules, such as conflict of interest under Rule 1.7, would prohibit such a relationship with an ongoing client. But because of problems, particularly in certain areas of the law, ultimately Rule 1.8(j) was adopted, prohibiting a lawyer from having sexual relations with a client unless the consensual relationship existed between the lawyer and client when the client-lawyer relationship commenced.
But there is nothing in the Rules of Professional Conduct, nor should there be, involving dating or sexual relationships between lawyers and employees in the lawyer's firm. However, just because there is no ethical prohibition doesn't suggest that this should be condoned. Many law firms have a no-dating policy. Although that may be too strict in some circumstances, it is generally a good procedure.
Any lawyer or any business manager knows the problems with intraoffice dating. Not only does this create unproductive time but it often can undermine morale, particularly if other employees perceive the lawyer is favoring one employee or paralegal over the others because of the relationship. There is always a problem when the relationship ends with where it leaves everyone at the firm.
A good office employee may leave because of a relationship that ended. That could be a loss to a law firm. Every firm knows a good paralegal or good office secretary is worth his or her weight in gold, even in this modern age of technology where lawyers seem to do more of what was once secretarial work. Further, dating or flirting in a law office can easily lead to serious employment discrimination suits down the line when a lawyer or a firm is not careful.
The better practice is to avoid such interactions within the firm if it's humanly possible. Intraoffice relationships must not interfere with work and must be confined to outside the office setting. Obviously, clients should never know about these types of relationships. A law firm is a professional place and there is absolutely no reason for a lawyer or the lawyer's staff to bring in their personal lives. When one goes to the doctor, one doesn't want to hear about the doctor's problems or dating life. One wants to be treated. The same applies to a client who is there for a problem that has to be dealt with.
It is probably better that the Rules of Professional Conduct do not regulate this subject because of the frustration of overregulation of the legal profession and how that will affect the independence of an attorney. But common sense and good business and managerial judgment should require law firms to at least have some sort of policy on the issue of office romances to ensure the professionalism of a law firm is maintained. •
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.