Randy Evans and Shari Klevens, Dentons partners. ()
Since the Great Recession, many law practices and their clients have placed a premium on working with experienced lawyers. Unsurprisingly, lateral attorney moves have increased in frequency. But lateral moves among non-attorney staff, including paralegals, executive assistants, and secretaries, have recently increased as well.
Non-attorney staff hiring is not always considered in the context of ethics issues, but it nevertheless involves its own set of challenges. And sometimes, the consequences can be just as serious as when hiring a lateral attorney.
In California, non-attorney employees, such as law clerks, researchers, executive assistants, secretaries, and investigators, are not directly subject to the Rules of Professional Conduct, but hiring them could still impact the attorney’s responsibilities to the client. For example, the duty of competence owed by attorneys to their clients under Rule 3-110 includes the duty to supervise the work of non-attorney employees or agents. See California Rules of Professional Conduct, Rule 3-110. Thus, attorneys may be considered accountable for their employees’ conduct, especially if such conduct compromises attorney-client confidentiality. See In re Complex Asbestos Litigation, 232 Cal. App. 3d 572, 603 (1991).
The Los Angeles County Bar Association Professional Responsibility and Ethics Committee, Opinion No. 524 (2011), addressed the ethical responsibilities of a California firm that hires a non-attorney in possession of confidential information pertaining to parties adverse to matters that the law firm is handling. The committee concluded that the hiring firm can conduct a reasonable investigation into whether the prospective employee has “been exposed to or acquired confidential information” during the prior employment that relates to legal matters that the law firm is handling.
The committee advised that, “[t]he hiring firm should in particular ascertain whether the proposed employee’s former firm is or has been opposing counsel to the hiring firm on any current cases, to determine whether the proposed employee has been exposed to confidential information of an adverse party or witness regarding those cases.”
The committee also found that “the hiring firm must not attempt to delve into the substance of any information the non-attorney may have acquired. It is the obligation of the hiring firm to instruct the non-attorney employee, once hired, as to his or her confidentiality obligations, and, absent first obtaining the consent of the former employer or the affected client of the former employer, to promptly screen the non-attorney employee from involvement in particular matters if the non-attorney is in possession of confidential information which is materially related to matters in which the hiring firm represents an adverse party.”
The opinion provides a roadmap for California law firms when hiring non-attorney staff. Here are the relevant steps.
1. Screen prospective employees
Many law firms will screen non-attorney staff prior to hiring them, similar to what the firms would do for an attorney lateral. Many use the application for this purpose to ascertain the following: prior legal employment, prior legal experience, and prior or existing relationships with attorneys.
Attorneys or law firms identified in response to these inquiries can then be run through the firm’s conflicts system. If this search reveals that the prospective hire has worked for, has experience with, or is related to counsel involved with matters involving clients of the firm, then further inquiry may be warranted. Sometimes, the new hire may need to be screened off from other matters to reduce the risk of tainting the representation.
Generally, the screening process is merely prophylactic and involves no additional action. However, if the application and follow-up reveals a potential issue, then the law practice may consider taking further steps to minimize the risk of disqualification due to a conflict imputed to the firm by the new hire.
2. Consider Reaching Out to the Former Employer
The law firm may first ask for the former employer’s consent to hire the non-attorney applicant if there is a potential risk for a conflict. The committee explained that, “when a hiring firm determines that a new hire or prospective employee has been exposed to confidential information likely to be material to a matter at the new firm, one option is to seek the consent of the former employer before making the hire.”
If consent is not available, however, “the hiring firm can fulfill its obligation to ensure that its employees comply with duties of confidentiality by obligating the new hire to refrain from divulging confidential information, and by screening the new hire, so that the new hire cannot provide or receive information regarding the matter from which he or she is screened.”
3. Confirm adequate screening
The elements of an adequate screen may involve several components, tailored to the specific circumstances. Here are some example elements for a screen: notifying all legal staff to isolate the screened employee from communication regarding the matter, preventing the screened employee’s access to the relevant files, advising the employee not to discuss the prior matter with the new firm, and searching the firm’s records to ensure that all cases on which the new employee’s former firm is opposing counsel are identified.
For many, electronic security is an important element of an effective screen. Relevant electronic files can be password-protected and the password withheld from screened employees. Effective practices may also include documenting the continued existence and impermeability of the screen, either by sending written reminders to all staff or by requiring periodic certification by screened staff that they have not breached the screen.
Additionally, the committee recommended that firms apply the same elements of effective attorney screening in the context of screening non-attorney personnel. The California Court of Appeal has set forth the following elements of screening for attorneys: prohibiting and sanctioning discussion of confidential matters; physical, geographic, and departmental separation; establishing rules and procedures preventing access to confidential information and files; and continuing education in professional responsibility. Kirk v. First Am. Title Ins. Co., 183 Cal. App. 4th 776 (2010).
By relying on the Kirk screening elements, the implication is that non-attorneys may be screened and hired without exposing the new firm to disqualification if proper screening and ethical walls are implemented.
Law firms therefore may consider either expanding the scope of existing conflicts protocols to include all personnel or implementing another protocol directed to non-attorney employees. Either option will help to ensure that the firm and its attorneys comply with applicable California laws, including the Rules of Professional Conduct.