The potential for conflicts of interest is not limited to attorneys. As the ethical rules recognize, the same considerations regarding the disclosure of a former client’s confidential information are present where a paralegal, legal assistant, or other nonlawyer moves from one firm to another. For that reason, firms and attorneys can be subject to some of the same restrictions based on the prior work of a nonlawyer as they would for a conflicted lawyer.

Firms can sometimes overlook conflict issues as they relate to nonlawyers. The consequences of such omissions can be serious, but they are largely manageable. In addressing the imputation of conflicts of interest, the California Rules of Professional Conduct include a comment clarifying that representation by others in a law firm is not prohibited where the individual prohibited from involvement is a nonlawyer, such as a paralegal or legal secretary, but that such prohibited persons “ordinarily must be screened from any personal participation in the matter.” California Rules of Professional Conduct, R. 1.10, cmt. [2].

California courts have also weighed in on the issue. In Kirk v. First Am. Title Ins. Co., the California Court of Appeals observed that when a tainted non-attorney employee of a law firm, possessing confidential case information, moves to an opposing law firm, vicarious disqualification of the opposing law firm is not necessary if the employee is effectively screened. 183 Cal. App. 4th 776, 806, 108 Cal. Rptr. 3d 620, 642 (Cal. Ct. App. 2010), as modified (May 6, 2010) (citing In re Complex Asbestos Litigation, 232 Cal. App. 3d 572, 579, 593, 596, 283 Cal. Rptr. 732 (Cal. Ct. App. 1991)). Kirk further applied the same rule to a non-retained expert, which is another area that can give rise to potential conflicts but often is overlooked. See id. 

The majority of states that have addressed this issue have similarly found that appropriate ethics screens may avoid an imputed conflict of interest when a nonlawyer brings a conflict to a new firm. For example, in Hodge v. Urfa-Sexton, LP, the Georgia Supreme Court held that the screening of nonattorney staff “is a permissible method to protect confidences held by nonlawyer employees who change employment.” 295 Ga. 136 (2014). The court explained that a nonattorney’s conflict of interest may be remedied if the law firm employing that nonattorney uses effective and appropriate screening measures and promptly discloses the conflict.

The Rules and related case law help provide a framework for law firms to avoid a disqualifying imputed conflict of interest based on the hiring of nonattorney staff. Below are key considerations.

Gather Conflict Information During the Hiring Process

Conflicts can be an important consideration prior to the actual hiring of nonattorney staff. Some firms use a written application that inquires about the candidate’s prior legal employment, relationships with attorneys, and legal experience. If the conflicts system reveals that the prospective nonattorney staff hire has worked for, has experience with or is related to matters involving clients of the firm, then the hiring firm can conduct further inquiry.

Indeed, the definition of “screened” in the California Rules of Professional Conduct refers to the “timely imposition of procedures” to protect against the disclosure of information, which can be easier to accomplish if the firm has knowledge of potential issues in advance of hiring. The court in Hodge agreed that “it would be prudent for a potential employer to conduct a conflict check before hiring a new nonlawyer, so as to implement appropriate screening measures and avoid the possibility of subsequent disqualification.” For many, this screening process is purely prophylactic and involves no additional action. However, if the application and follow-up reveals a potential problem, firms can take additional steps to assess whether there is a risk of disqualification.

Implementing Screening Measures

In Kirk, the Court of Appeals observed that, similar to the Rules, an effective screen “must be timely imposed … when the conflict first arises” rather than waiting for a court to impose screening measures in connection with a disqualification motion. The court further observed that “an effective wall involves the imposition of preventive measures to guarantee that information will not be conveyed.” This can include circulating a memorandum “warning the legal staff to isolate the [tainted] individual from communications on the matter and to prevent access to the relevant files.”

Moreover, while acknowledging that the specific elements of an effective screen can vary, the court cited California precedent identifying the following as typical elements of an ethical wall:

• physical, geographic, and departmental separation of attorneys (or here, nonlawyers);
• prohibitions against and sanctions for discussing confidential matters;
• established rules and procedures preventing access to confidential information and files;
• procedures preventing a disqualified attorney from sharing in the profits from the representation; and
• continuing education in professional responsibility.

The comments to Rule 1.10 further suggest that the obligation to identify potential conflicts among nonlawyers and to implement screening measures is part of an attorney’s responsibilities in managing or supervising nonlawyers pursuant to Rule 5.3. That Rule provides, for example, that “a lawyer who individually or together with other lawyers possesses managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer.”

Those responsibilities could include implementing protocols to ensure that conflicts are identified in nonlawyers and that nonlawyers are appropriately screened if required under the Rules.

Effective screening techniques that apply to both lawyers and nonlawyers are an important part of conflict of interest protocols. These techniques can help law firms balance their goals for hiring new talent to help them serve clients with the risks inherent in potentially imputed conflicts. Keeping these steps in mind can help reduce risk or even disqualification based on a nonlawyer’s conflict of interest.