15.08. Non-Lawyers Changing Firms: Secretaries/Paralegals/Law Students

The Rules of Professional Conduct only apply to lawyers.  That means that the conflict of interest rules do not apply to non-lawyers such as secretaries, paralegals and law students.  However, nonlawyer staff often learn confidential information about clients and cases.  Here is the dilemma:  when a nonlawyer employee moves from a firm that is on one side of a case to a firm that represents the opposing side, how should the new firm handle this?  The ABA, in Informal Opinion 88-1526, recognized that the rule needs to be a balance between allowing nonlawyer staff to change jobs and the protection of the former client confidences.  The ABA proposed that nonlawyer staff would not disqualify their new firm/employer who is opposed to a client of the employee’s former employer so long as the new firm tells the employee not to reveal any information relating to the representation of the former client and the employee is screened from working on any matter she worked on for a prior employer.  However, the new firm will be disqualified if the new employee actually discloses confidential information to the new firm or if the firm is so small it would be impossible to screen the employee from working on the case.[1]

[1] ABA Informal Op. 88-1526, Imputed Disqualification Arising from Change in Employment by Nonlawyer Employee (June 22, 1988).