November 18, 1996
A law firm is not per se disqualified as counsel in litigation where the law firm has hired a former secretary of the law firm representing an opposing party.
Where the former secretary has been exposed to confidences or secrets in the course of the secretary's first employment, the secretary must be screened from any involvement or contact with the litigation upon hire by the second law firm.
References: MRPC 1.9(b), 1.10(b); R-4; RI-43, RI-97, RI-115.
A lawyer representing the plaintiff in civil litigation has filed a motion to disqualify opposing counsel where opposing counsel has hired plaintiff's former secretary who also served as a secretary at the moving lawyer's law firm. In the course of the secretary's duties with plaintiff and plaintiff counsel's law firm, the secretary arguably had access to secrets and/or confidences pertinent to the plaintiff's case. The inquirer has requested assistance in resolving these issues of disqualification.
The rules for disqualification of law firms due to lawyers transferring between firms applies to a transfer on nonlawyer employees as well. RI-115. Those limitation for lawyers who transfer from one firm to another are explicitly set forth in MRPC 1.9(b) and 1.10(b) and are also discussed in detail in R-4.
MRPC 1.9(b) states:
"(b) Unless the former client consents after consultation, a lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated has previously represented a client
"(1) whose interests are materially adverse to that person, and
"(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter."
MRPC 1.10(b) states:
"(b) When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or substantially related matter in which that lawyer, or a firm with which that lawyer was associated, is disqualified under Rule 1.9(b), unless:
"(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and
"(2) written notice is promptly given to the appropriate tribunal to enable it to ascertain compliance with the provisions of this rule."
In order to avoid the disqualification of the law firm to which the disqualified lawyer has transferred, that transferred lawyer must be immediately screened upon hire from any participation or fee sharing as to the related actions or proceedings or the new firm itself will be disqualified from continuing representation of the existing client or undertaking representation of a potential future client in related actions or proceedings.
This screening procedure involves:
The exclusion of a disqualified lawyer from any participation in the action.
Instruction to all other lawyers in the firm to not discuss the matter in the disqualified lawyer's presence and, not to allow the disqualified lawyer to view any documents or other material relating to the action or proceeding and, not to receive any information from the disqualified lawyer concerning the matter.
Moving files pertaining to the matter to physically segregated area or marking them with special coding.
Segregation of fees derived from such professional representation such that the disqualified lawyer does not, directly or indirectly, receive any portion of the fees.
Failure to timely and completely employ this screening procedure disqualifies the new law firm from continuing to participate in all such actions or proceedings. R-4.
In the instance where a nonlawyer employee has had access during prior employment to confidential or secret information concerning the legal matter substantially related and material adverse to a matter in which the law firm employer is representing a client, these same screening rules apply. The law firm must promptly and adequately screen the nonlawyer from the matter to avoid disqualification. RI-115.
General administrative duties routinely performed by a secretary involving the processing of the file implies "access" to confidential or secret information. Ethics opinions have liberally construed "access" to confidential or secret information to include: typing confidential or secret materials, filing confidential or secret files, copying, proofreading or processing confidential or secret information. RI-115.
If the new employee had access to the material, confidential or secret information at the former law firm, that employee must be immediately screened from any involvement in the case and prohibited from relaying any secret or confidential information to the new law firm. This is entirely consistent with the screening procedures to be employed of this transferring lawyers as set forth above in reference to R-4.
With respect to the screening procedure it should be noted that any screening procedure must be installed immediately when the transferring employee joins the new firm or the new firm would be disqualified from continuing to participate in such actions and proceedings. RI-43, RI-97, RI-115.
In this instance, albeit there is a dispute about whether the secretary had access or secret or confidential information during the course of the secretary's activities with the former law firm, given the liberal standard of access to secret or confidential information as set forth in RI-115, it is safe to presume that the secretary's duties involved some access to secret or confidential information.
Accordingly, the hiring law firm needed to screen the former secretary immediately upon hiring the former secretary to prevent any and all participation in the course of the hiring law firm's representation of the client. There appears to be a factual dispute, according to the information provided, as to the breadth and timing of the screening procedure used by the hiring law firm. The focus on this factual dispute is heightened where the secretary in question has now quit employment with the second law firm, thereby making the current screening procedure irrelevant.
As this determination apparently involves factual matters which are beyond the knowledge of this Committee, the Committee tenders no opinion as to whether the screening procedure has been fully and timely employed. To the extent the court determines that the new firm has not appropriately complied with the screening procedures as set forth above, then the new firm is disqualified from continuing to participate in all such actions and proceedings. Absent such a factual determination, however, it is clear that in proper circumstances where a secretary is hired by a new law firm, there are screening procedures which if properly employed would not cause the per se disqualification of the hiring law firm from further participation in this proceeding.