OPINION 472
June 1991

Statement of Facts

During pendency of a lawsuit one of the attorneys fires his "right hand" secretary or legal assistant, with bad feelings existing between the attorney and the fired legal assistant. The former legal assistant soon takes employment as a secretary/legal assistant at the opposing law firm. Both firms are small firms, with less than five lawyers.

Question Presented

Should the new law firm where the legal assistant has taken employment, be disqualified from further representation of a party adverse to the former employer's client?

Discussion

Rule 5.03 provides as to responsibilities regarding non-lawyer assistants:

"With respect to a non-lawyer employee retained by or associated with a lawyer:

  1. a lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and
  2. a lawyer shall be subject to discipline for the conduct of such a person that would be a violation of these rules if engaged in by a lawyer if:
    1. the lawyer orders, encourages or permits the conduct involved; or
    2. the lawyer:

i. is a partner in the law firm in which the person is employed, retained by, or associated with; or is the general counsel of a governmental agency's legal department in which the person is employed, retained by, or associated with; or has direct supervisory authority over such person; and

ii. with knowledge of such misconduct by the non-lawyer knowingly fails to take reasonable remedial action to avoid or mitigate the consequences of that person's misconduct.

The Comment under Rule 5.03 provides:

"Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and health professionals. Such assistants act for the lawyer in the rendition of the lawyer's professional services. A lawyer should give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose the information relating to representation of a client, and should be responsible for their work product. The measures employed in supervising non-lawyers should take account of the fact that they do not have legal training and are not subject to professional discipline. Each lawyer in a position of authority in a law firm or in a government agency should make reasonable efforts to ensure that the organization has in effect measures giving reasonable assurance that the conduct of non-lawyers employed or retained by or associated with the firm or legal department is compatible with the professional obligations of the lawyer. This ethical obligation includes lawyers having supervisory authority or intermediate managerial responsibilities in the law department of any enterprise or government agency."

While the old DR 9-101 required attorneys to avoid the appearance of impropriety and the old DR 4-101 encouraged lawyers to avoid any likelihood of public suspicion of the legal profession and the case law generally requires disqualification to avoid the appearance of impropriety because of conflicts of interest, the new Rules do not require automatic disqualification to avoid the appearance of impropriety. However, Rule 5.03 specifically requires a non-lawyer's supervising lawyer to make reasonable efforts to ensure that the non-lawyer conduct is compatible with the professional obligations of the lawyer, where the lawyer could be subject to discipline for the conduct of such lay person. Thus, the non-lawyer's supervising lawyer must ensure that Rule 1.05 concerning client confidences, Rule 1.06 concerning conflicts of interest, and Rule 1.09 concerning former client conflicts of interest must be fully complied with.

Conclusion

If the supervising lawyer of the legal assistant or secretary complies with Rule 1.05 concerning client confidences, complies with Rule 1.06 concerning conflicts of interest, and complies with Rule 1.09 concerning former client-conflicts of interest, so as to ensure the non-lawyer's conduct is compatible with the professional obligations of a lawyer, then the new law firm is not ethically required to disqualify the new law firm, under the Disciplinary Rules, from representation of a party adverse to the former employer's client.