July 25, 1985
If a law firm hires a legal assistant from a firm which is adverse counsel in pending cases and the legal assistant has actual knowledge of the facts, legal analysis or strategies developed by adverse counsel in those cases, the hiring firm may not continue its representation in those cases absent an informed express consent by all opposing clients. Conversely, if the firm wishes to continue its representation of its client in those pending cases, it may not hire the legal assistant.
References: MCPR Canons 4 and 5, DR 4-101(B) and (D), DR 5-105(A); CI-459, CI-1034.
A defense lawyer represents a company in numerous pending cases in which plaintiffs are represented by the same law firm. The defense lawyer wishes to hire a legal assistant who is employed by the plaintiffs' law firm and who has worked extensively on the pending cases.
We believe this issue presents a case of first impression. Our research has found no ethics opinion or case decision dealing with similar facts. There is authority, however, dealing with the analogous situation of an lawyer changing from one law firm to an adversarial firm. Most recently this committee held in CI-1034:
"A law firm hiring an attorney who comes from another firm which is adverse counsel to the hiring firm on one or more cases may not continue its representation on those cases if the new attorney had actual knowledge of the facts, legal analysis or strategies developed by the original firm regarding those cases even though the attorney would be screened from participating in the cases for the new firm." (Quoting Syllabus)
See also CI-459 and ABA Model Rules of Professional Conduct 1.10(b). But see CI-652 (different result where switching lawyer had no actual knowledge concerning case). These ethics opinions are largely based on Canon 4 (A Lawyer Should Preserve the Confidences and Secrets of a Client), DR 4-101(B), and to a lesser extent on Canon 5 (A Lawyer Should Exercise Independent Professional Judgement on Behalf of a Client) and DR 5-105(A). The rationale which supports the opinions derives from the obligation of the lawyer changing employment to preserve the confidence of former clients.
The present issue is not so clear cut. The legal assistant is not subject to professional discipline and has no direct responsibility under the Michigan Code of Professional Responsibility. From the vantage of the new employer, two benchmarks emerge. First, Guidelines for the Utilization of Legal Assistant Services, Guideline III, Michigan Bar Journal, Special Supplement, Vol. 63, No. 5A, May 1984, states:
The comment to Guideline III makes reference to ABA Ethical Considerations [EC] 4-1 and 4-2. EC 4-1 enunciates the philosophical underpinnings of lawyer/client confidentiality. EC 4-2 speaks to the practical necessities of the law office:
". . . [I]t is a matter of common knowledge that the normal operation of a law office exposed confidential professional information to non-lawyer employees of the office, particularly secretaries and those having access to the file; and this obligates a lawyer to exercise care in selecting and training his employees so that the sanctity of all confidences and secrets of his clients may be preserved . . . ."
Second, Rule 5.3 of the ABA Model Rules of Professional Conduct (not yet adopted in Michigan) states:
"With respect to a nonlawyer employed or retained by or associated with a lawyer, the lawyer:
shall make reasonable effort to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and
is responsible for conduct of such person that would be violation of the Rules of Professional Conduct if engaged in by a lawyer, if
(1) the lawyer orders or ratifies the conduct involved; or
(2) the lawyer is a partner in the law firm which the person is employed, or has supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated, but fails to take reasonable remedial action." Emphasis added.
While there is no direct counterpart to Rule 5.3 in the Michigan Code of Professional Responsibility, DR 4-101(D) provides that "a lawyer shall exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences or secrets of a client . . . ." Furthermore, courts have generally held the lawyer responsible for the conduct of nonlawyer employees. See, Spindell v State Bar, 13 Cal 3d 253, 530 P2d 168, 118 Cal Rptr 480 (1975); Vaughn v State Bar, 6 Cal 3d 847, 494 P2d 1257, 100 Cal Rptr 713 (1972); In re Famularo, 334 A2d 331 (NJ 1975); In re Palmieri, 383 A2d 1142 (Pa 1978).
CI-1034 and CI-459 instruct us that a lawyer violates the Code of Professional Responsibility by moving from one employment to another and taking knowledge, analysis, and strategies which could be made available to the adversary of a former client. Model Rule 5.3 and the supporting rationale makes an employing lawyer responsible for conduct of a legal assistant where that conduct, if committed by a lawyer, would violate ethical standards.
Legal assistance and other nonlawyer personnel are necessary and important to the delivery of legal services. To fulfill their duties they must often have intimate familiarity with matters of client confidence and lawyer work product. ABA Model Rule of Professional Conduct 1.6 states that a client generally gives implied consent to the disclosure of confidences to necessary employees. Implied consent rests upon the immutable assumption that the confidence resides as securely in the employee as in the lawyer. The cornerstone of the relationship between the lawyer and client is the expectation of trust, which finds expression in the ethical principle of Canon 4 and the work product privilege of the law of evidence. If we were to allow confidences to move freely among adversaries through persons not subject to professional discipline, that cornerstone would be seriously weakened to the detriment of the relationship itself.
We therefore hold that if a law firm hires a legal assistant from a firm which is adverse counsel in pending cases and if the legal assistant has actual knowledge of the facts, legal analysis or strategies developed by adverse counsel in those cases involved absent an informed express consent by all opposing clients. Conversely, if the firm wishes to continue its representation of its client in those pending cases, it may not hire the legal assistant.