Supervising Non-Lawyers Hired from Another Law Firm

Current Issue, NYLER Archive, NYPRR Archive, Uncategorized

By Lazar Emanuel

[Originally published in NYPRR July 2004]

The New York State State Bar Association has issued Formal Opinion 774 (March 23, 2004) defining a law firm’s responsibility on hiring a secretary, paralegal or other non-lawyer who has worked at another law firm.

Generally, it is advisable that the law firm remind the non-lawyer to protect the confidentiality of information relating to clients of the other firm. As expressed in NYSBA Opinion 422 (1975), a lawyer may hire a secretary who had worked at a currently opposing law firm, “provided he cautions the secretary not to divulge any confidential information and will not permit the secretary to do so.” In training the new secretary, the lawyer might instruct the secretary not to accept any work assignment on which the secretary worked while at the former firm.

Also, lawyers in the new firm should be instructed not to solicit or listen to confidential information imparted by the new hire.

Under DR 5105 (E), a law firm is required to keep contemporaneous records of prior engagements and to have a policy implementing a system for checking conflicts. In NYSBA Opinion 720 (1999), law firms were advised to include in this system “information about the representation of lawyers who join the firm.” This same requirement does not apply to non-lawyers who are hired from another firm. “DR 5105 (E) does not require law firms to search for conflicts that may be created when non-lawyers join the firm laterally.” However, because DR 4104(C) requires adequate supervision of non-lawyers, there may be circumstances in which a firm should check for conflicts in a non-lawyer (example: hiring a litigation paralegal who worked for a solo practitioner who is now opposing counsel in a matter that was pending when the paralegal left).

If the new hire does possess confidential information belonging to the former firm, the new firm has a duty not to exploit it. A lawyer may not take advantage of an offer from a new hire to provide harmful information about the opposing party. [NYSBA Opinion 700 (1998).] A lawyer has a duty “to refrain from encouraging a breach of client confidentiality by opposing counsel’s staff.

The greater the responsibilities of the new hire at the former firm, the more likely it is that ethical problems will arise at the new firm. It may be necessary, for example, to screen a secretary who acquired substantial information about a matter while at the former firm. Occasionally, even a screen will be inadequate. In those instances, the new firm may consider obtaining the consent of the former firm, withdrawing from the matter in conflict, or terminating the non-lawyer.

Lazar Emanuel is the Publisher of NYPRR

DISCLAIMER: This article provides general coverage of its subject area and is presented to the reader for informational purposes only with the understanding that the laws governing legal ethics and professional responsibility are always changing. The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. Consult your attorney for legal advice. New York Legal Ethics Reporter provides this article with the understanding that neither New York Legal Ethics Reporter LLC, nor Frankfurt Kurnit Klein & Selz, nor Hofstra University, nor their representatives, nor any of the authors are engaged herein in rendering legal advice. New York Legal Ethics Reporter LLC, Frankfurt Kurnit Klein & Selz, Hofstra University, their representatives, and the authors shall not be liable for any damages resulting from any error, inaccuracy, or omission.

Lazar Emanuel