Opinions

Ethics Opinion 227

Migratory Paralegals and Lawyers/Imputed Disqualification/Screening

If a paralegal moves from Law Firm A to Law Firm B, and that paralegal is personally disqualified from a matter pending in Law Firm B because the paralegal worked on a substantially related matter at Law Firm A, Law Firm B ordinarily may avoid imputed disqualification by "screening" the paralegal from that matter in Law Firm B. However, it is not permissible for Law Firm B purportedly to "screen" the paralegal from only that portion of the matter that is related to the paralegal's previous work at Law Firm A, and assign the paralegal to work on other, assertedly unrelated aspects of that same matter. Absent informed consent from Law Firm A's client, the paralegal must be effectively isolated at Law Firm B from the entire matter, otherwise Law Firm B risks being disqualified from that matter. In general, in the case of a migratory lawyer (as distinguished from a nonlawyer), screening plus consent of the former client is required.

Applicable Rules

  • Rule 1.9 (Conflict of Interest: Former Client)
  • Rule 1.10 (Imputed Disqualification: General Rule)
  • >Rule 5.3 (Responsibilities Regarding Non-Lawyer Assistants)

Inquiry
A paralegal has recently become employed by Law Firm B (the inquirer) after having worked the previous two years at Law Firm A. Law Firm B represents Wife in her divorce proceeding against Husband. Husband is the principal owner of the ABC Company. While at Law Firm A the paralegal worked on matters regarding the pension and profit-sharing plans (the "Plans") of the ABC Company. She had access to the terms of the Plans and on at least one occasion she assisted in preparing the Summary Plan Descriptions for the Plans. The inquirer represents that the paralegal "does not recall" having access to underlying financial and accounting data for the Plans, that Law Firm A did no other legal work for the ABC Company or Husband, and that the paralegal never met Husband while she was employed by Law Firm A. Law Firm A is not involved in the divorce proceeding brought by Wife against Husband.
   The paralegal is the only litigation paralegal employed by Law Firm B, which wishes to assign her to work on the divorce matter between Wife and Husband. Law Firm B represents that the issues in the divorce case relating to the Plans "are a very small and easily segregated part of the [divorce] case." The inquirer therefore proposes to implement a protective "screening" procedure so that the paralegal would be isolated from all aspects of the divorce case relating to the Plans, and would assist only on the other aspects of the divorce case as if Husband was not involved in any pension or profit-sharing plans relevant to the divorce case.

Discussion
In the case of a nonlawyer moving from one law firm to another, the strict general rule of imputed disqualification reflected in Rule 1.10 does not apply because Rule 1.10 literally refers only to "lawyers." Nevertheless, Rule 5.3(a) requires a law firm to make reasonable efforts to ensure that the conduct of all nonlawyers "is compatible with the professional obligations of" the lawyers. One of the most fundamental obligations of the lawyers that must also be adhered to by the nonlawyers is the preservation of confidences and secrets of current clients and former clients. That leads to a consideration of "screening" or an "ethical wall" in the instant case within Law Firm B as a means of ensuring that Husband's confidences and secrets relating to the Plans will be preserved.
   At the outset we hold that the work performed by the paralegal on the Plans at Law Firm A is a matter that is "substantially related" within the meaning of Rules 1.9 and 1.10(b) to the divorce matter pending at Law Firm B. See, e.g., our Opinion No. 158 (9/17/85). The relationship between the Plans and the divorce matter in this inquiry may not be quite as close and direct as the relationship between the two matters discussed in a similar context in Opinion No. 158. Nevertheless, it is clear that Husband, as the principal owner of ABC Company, has a significant interest in, and from Wife's point of view there is significant economic value associated with, the ABC Company's Plans.
   It may be that at Law Firm A the paralegal did not actually have access to confidential information regarding the Plans or Husband's interest therein, and that in any event such sensitive and confidential information as may exist regarding Husband's interest in the Plans will be required to be disclosed by him as part of the normal discovery process in the divorce matter. If so, those facts nevertheless are irrelevant under Rule 1.9, which requires an end to the analysis if the two matters are "substantially related," which we hold they are.
   The inquirer appears to recognize the foregoing principle by its proposal to cure the problem by screening the paralegal from all aspects of the divorce matter (namely, the Plans) that are substantially related to the paralegal's previous work at Law Firm A on the Plans. We conclude that a screening mechanism in the circumstances presented by this inquiry is permissible only if it effectively isolates the paralegal from the entire divorce matter at Law Firm B.
   We have found no case law, legal ethics opinions, or other legal authority supporting the concept that, where screening is appropriate to cure imputed disqualification in a particular matter, the screen may exist only as to a portion of that matter, and that the personally disqualified individual may participate in other portions of that matter that are assertedly unrelated to that individual's prior work for the former client. As it is, in the District of Columbia and elsewhere there is considerable controversy regarding the propriety and practical effectiveness in general of a "screen" (also sometimes referred to as an "ethical wall" or "cone of silence") as a cure for imputed disqualification. We decline to approve the novel concept of a partial screen as to a portion of a matter without the former client's (in this case the Husband's) consent.
   In the case of migratory nonlawyers generally, we approve the pro-screening approach reflected in Informal Opinion 88-1526 (6/22/88) of the ABA Standing Committee on Ethics and Professional Responsibility, the official synopsis of which is as follows:

A law firm that employs a nonlawyer who formerly was employed by another firm may continue representing clients whose interests conflict with the interests of clients of the former employer on whose matters the nonlawyer has worked, as long as the employing firm screens the nonlawyer from information about or participating in matters involving those clients and strictly adheres to the screening process described in this opinion and as long as no information relating to the representation of the clients of the former employer is revealed by the nonlawyer to any person in the employing firm. In addition, the nonlawyer's former employer must admonish the nonlawyer against revelation of information relating to the representation of clients of the former employer.
   Therefore, if the paralegal at Law Firm B is effectively isolated from all aspects of the divorce matter between Wife and Husband, Law Firm B may continue as counsel to Wife in that matter, whether or not Husband consents. In this connection, we suggest that Law Firm B consider one or more of the following precautionary techniques in order to satisfy its obligation under Rule 5.3 to ensure that the paralegal is effectively isolated from the divorce matter:
   (a) On or before the date on which the paralegal reports for work at Law Firm B, (i) instruct the paralegal in writing not to discuss the divorce matter or the Plans with any partner or employee of Law Firm B, and (ii) conversely, instruct every partner and employee of Law Firm B in writing not to discuss the divorce matter or the Plans with the paralegal.
   (b) All of Law Firm B's files relating to the divorce matter could be "stickered" with a legend containing the substance of the restrictions described in (a) above.
   (c) Investigate whether the paralegal has brought with her from Law Firm A any files or other information relating to the Plans, or the ABC Company, or Husband.
     We note that, if the facts were otherwise the same as described above except that the person who was a paralegal at Law Firm A had subsequently attended law school and become a member of the Bar by the time she reported to work at Law Firm B, there is a special provision—unique to the District of Columbia—included in Rule 1.10(b) that would cause our holding to be the same notwithstanding the fact that the person involved is actually a member of the Bar upon reporting for work at Law Firm B:
The [imputed] disqualification of the firm does not apply [under Rule 1.10] if the lawyer participated in a previous representation or acquired information under the circumstances covered by Rule 1.6(g).

     Rule 1.6(g) explicitly extends the obligation of confidentiality imposed upon a lawyer to confidences and secrets obtained by a lawyer prior to becoming a member of the Bar "in the course of providing assistance to another lawyer."
   Further, we observe that, if the facts were otherwise the same as described above except that the person involved was a member of the Bar while working on the Plans at Law Firm A, and was a member of the Bar when she reported for work at Law Firm B, a screening process of the kind approved above is not in itself effective to avoid the imputation of that individual's personal disqualification to the entire Law Firm B. Under the language of Rule 1.10, paragraphs (a) and (b), Law Firm B could avoid imputed disqualification from the divorce matter only by obtaining Husband's consent to its hiring (and screening) of that person. This Committee held to that effect in Opinion No. 174 (6/17/86) under the previous Code, and the District of Columbia Court of Appeals in Comment [15] under Rule 1.10 has explicitly confirmed that screening, without more, is not sufficient to avoid imputed disqualification under Rule 1.10(b) in the case of a migratory lawyer. In addition to screening, consent of the former client is required. The willingness of the former client to give such consent presumably will depend primarily on the extent to which that former client is satisfied that the migratory lawyer and his or her new firm are trustworthy, and that the screen will be effective. Finally, in the context of movement to a private law firm by former government lawyers and other public officials, including judges, see Rule 1.11, which generally permits screening subject to certain conditions.

 

April 1992