The Ethics of Revealing Client Names to a Prospective Employer

Ellen Lockwood, ACP, RP

Ellen Lockwood, ACP, RP

We live in a mobile society where changing jobs is normal. Whether changing jobs for a better opportunity or because of relocation, paralegals need to be aware of the ethical issues regarding potential conflicts with a prospective employer.

In July 2011, the Professional Ethics Committee for the State Bar of Texas issued Ethics Opinion 607. Although the opinion addresses the ethical issue of attorneys revealing client names to potential employers, Opinion 607 also applies to paralegals.

Opinion 607 references the Texas Disciplinary Rules of Professional Conduct which prohibit an attorney who has joined a firm from another private practice from representing a client which is adverse to a former client. That prohibition extends to the other attorneys in the firm but the firm may avoid a conflict of interest if the attorney who worked for a prior firm is screened from firm matters in which the attorney had involvement while working for the prior firm. Further, as the Opinion states, in order for a firm to avoid potential conflicts of interest, the firm must have information on the prior clients of the attorney prior to the attorney joining the firm. However, the Disciplinary Rules also generally prohibit attorneys from disclosing confidential client information unless it benefits the client.

The Opinion goes on to point out that there are exceptions to these rules in order to allow the attorney and prospective employer to identify any potential conflicts and, if necessary, set up appropriate screening of the attorney before the attorney joins the firm.

The Opinion specifies that disclosures by an attorney of the attorney’s current and former clients to a prospective law firm employer is permitted if these requirements are met:

1. The disclosure of client information is made when all other material issues regarding employment have been addressed and is one of the final steps in consideration of employment.
    
2. The information is provided pursuant to a legal agreement, preferably in writing, that states that the firm will keep the information confidential within the firm for as long as the information remains confidential, and only use the information for determining whether to hire the attorney and to comply with the disciplinary rules regarding conflicts of interest if the attorney is hired.
    
3. The information provided to the prospective employer is the minimum necessary for the prospective employer to determine whether to hire the attorney and to comply with the rules regarding conflicts of interest. 4. The attorney does not disclose any client information that would produce a substantial risk.

Again, although Opinion 607 is written for attorneys, it is also applicable to paralegals. Because some firms may not be familiar with this Opinion, it is imperative that paralegals review the Opinion prior to beginning a job search, follow the requirements outlined in the Opinion, and, if necessary, educate their current and potential employer regarding the Opinion. Paralegals who work for private law firms, whether as employees or as freelance paralegals, should maintain a list of clients and matters on which they have worked. Depending upon the circumstances, paralegals may also need to involve their current employers in any agreement providing client information to potential employers. By following the requirements of Opinion 607, paralegals may avoid ethical issues and potential conflicts of interest when changing jobs.

Ellen Lockwood, ACP, RP, is the Chair of the Professional Ethics Committee of the Paralegal Division and a past president of the Division. She is a frequent speaker on paralegal ethics and intellectual property and the lead author of the Division’s Paralegal Ethics Handbook published by Thomson Reuters.