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Ethics Opinion

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RI-115

January 31, 1992

SYLLABUS

    The rules for disqualification of law firms due to lawyers transferring between firms apply equally to transfers of nonlawyer employees.

    Where a nonlawyer employee has had access during prior employment to confidential or secret information concerning a legal matter substantially related and materially adverse to a matter in which the law firm employer is representing a client, the law firm must promptly and adequately screen the nonlawyer from the matter in order to avoid disqualification.

    References: MRPC 1.9(b) and (c), 1.10, 5.3; R-4; ABA Op 88-1526; Kapco Mfg Co Inc v. C&O Enterprises Inc, 637 F Supp 1231 (ND Ill, 1985); Williams v. Trans World Airlines Inc, 588 F Supp 1037 (WD Mo 1984); Glover Bottled Gas Corp v. Circle M Beverage Barn Inc, 514 NYS 2d 440 (1987). CI-1096 is superseded.

TEXT

A lawyer is considering hiring a new secretary who currently works for another law firm in the same town. There are at least four matters in which the law firms appear on opposite sides of the matters. The secretary advises that none of the secretary's work at the former employer involved "access to privileged information or attorney work product," but did involve general administrative duties "involved in processing a file from a secretarial standpoint." The lawyer asks whether the secretary, if employed by the lawyer, may be assigned to handle the administration of files of the matters in which the two law firms represent opposing parties.

MRPC 5.3 states:

    "With respect to a nonlawyer employed by, retained by, or associated with a lawyer:

      "(a) a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;

      "(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and

      "(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the rules of professional conduct if engaged in by a lawyer if:

        "(1) the lawyer orders or, with knowledge of the relevant facts and the specific conduct, ratifies the conduct involved; or

        "(2) the lawyer is a partner in the law firm in which the person is employed or has direct 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."

MRPC 5.3 would suggest that considerations applicable to lawyers moving from firm to firm should be compatible with considerations regarding nonlawyer employees in the same circumstances. MRPC 5.3 provides that it is the responsibility of a law firm to ensure that a nonlawyer employee's conduct is compatible with the professional obligations applicable to its lawyers. Limitations on lawyers who move from firm to firm are explicitly set forth in MRPC 1.9 and MRPC 1.10 and discussed in R-4.

If the new employee to the firm were a lawyer, who had previously worked on or acquired confidential/secret and material information regarding these common files at the former firm, MRPC 1.9 would preclude the employee from working on these files at the new firm without the former client's consent after consultation. Pursuant to MRPC 1.10(a), the disqualification would be imputed to the firm, unless timely and adequate screening were in place to avoid any ethical breaches by the employee or the employee's new firm.

What constitutes adequate screening is discussed in detail in R-4. The new employee must not actively work on the file in either the "assistant" or "secretary" capacity. In fact, the files should be physically segregated from the employee to avoid both intentional and inadvertent access to them by the employee. The employee should be instructed not to access these files or discuss the files or any related matters with other members of the firm. In addition, other employees of the firm should be instructed: (1) not to discuss these files or related matters in the employee's presence; (2) not to allow the employee to review related documents or materials; (3) not to receive any information from the employee regarding these files. These screening procedures have been described as erection of a "Chinese wall" and are discussed in some depth in R-4. In R-4, we stated:

    "All that has been said about Chinese walls thus applies with nearly equal force to both nonlawyer employees of the acquiring law firm, and nonlawyer associates who contemporaneously accompany or subsequently join the transferring lawyer. The same would hold true if a nonlawyer employee transfers from one law firm to another alone, or as part of a group of nonlawyers; appropriate Chinese walls must be erected. Kapco Mfg Co Inc v. C&O Enterprises Inc, 637 F Supp 1231 (ND Ill, 1985); Williams v. Trans World Airlines Inc, 588 F Supp 1037 (WD Mo 1984); Glover Bottled Gas Corp v. Circle M Beverage Barn Inc, 514 NYS 2d 440 (1987); ABA Op 88-1526 (1988)."

In the instant circumstances, involving an "assistant/secretary" moving from firm to firm, the key issue is whether the employee had access to confidential/secret and material information pertaining to these files.

The lawyer states that the new employee said none of the former work involved access to privileged information or lawyer work product consideration, but was the general run-of-the-mill administrative duties involved in processing a file from a secretarial standpoint. This description of duties seems to imply "access" to confidential or secret information. "Access" to confidential or secret information is not a complicated concept. A secretary who types confidential or secret materials has access to them; a clerk who files confidential or secret files has access to them; an employee who copies, proofreads, or processes confidential or secret information in any manner has access to it. If the new employee had access to material, confidential or secret information at the former firm, the employee must be screened from access to them and to related materials and information.

This result is consistent with the holding in R-4, which states in part:

    "At a minimum, screening and fee segregation must include: (a) exclusion of the disqualified lawyer from any participation in the action; (b) instruction to all other lawyers in the firm (1) not to discuss the matter in the disqualified lawyer's presence, (2) not to allow the disqualified lawyer to view any documents or other material relating to the action or proceeding, and (3) not to receive any information from the disqualified lawyer concerning the matter; (c) moving files pertaining to the matter to a physically segregated area or marking them with special coding; and (d) segregation of fees derived from such professional representation, so that the disqualified lawyer does not, directly or indirectly, receive any portion of the fees." Emphasis added.

Therefore, if the secretary's tasks at the former employer's firm included exposure to protected information, even if the secretary's assignment did not include analysis or substantive cognition of the protective information, the secretary, upon arrival at work for the opposing lawyer, should be screened from any contact with material relating to the legal matters in order for the new employer to avoid disqualification in those matters.

CI-1096, which addressed this question under the former MCPR, likewise held that knowledge of a transferring nonlawyer employee would be imputed to the hiring firm. Under the MCPR, screening of the "tainted" new employee was not available, and the law firm had to decide between hiring the nonlawyer employee and withdrawing from the client's representation, or foregoing the hiring of the nonlawyer employee. This opinion therefore supersedes CI-1096.

 
     

 

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