Bar Counsel Notes: Conflicts/screening of support staff
Attorney B is interviewing a paralegal for possible employment while she still is employed by another law firm. The paralegal is currently doing work on a case for that employer in which B is the opposing counsel. Now that B has interviewed her and is considering making an employment offer, what are his ethical obligations?
B should review M. Bar R. 3.13(c) on oversight of legal assistants and Professional Ethics commission Opinion #186 which discusses attorneys' need to screen non-lawyer employees who worked previously for opposing counsel. That opinion holds that the normal complete imputed disqualification requirement of Bar Rule 3.4(b)(3)(i) does not apply to non-lawyer staff, i.e. effectively monitored complete screening of such employees is allowed. Thus, B should make a decision about whether to make her an employment offer as soon as possible. Then, if she plans to accept it, the paralegal should inform her current employer, who will probably want to cease any further direct involvement by her with the case where B represents the adverse party. Once she commences employment at B's law firm, B must then scrupulously screen her away from any involvement whatsoever with the case, as discussed in Opinion #186.
*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.