This is a two-part article. In this first installment, we present Ethics Opinion 472 and begin to unpack the committee s conclusion with a discussion of paralegal obligations under the Code of Ethics and Professional Responsibility of the Paralegal Division of the State Bar of Texas and the definition of confidential information under Texas Disciplinary Rules of Professional Conduct. In Part 2, we will conclude our discussion with the definitions of conflicts of interest and former client conflicts of interest followed by a summary of the opinion, the definitions and the ethical obligations for protecting client confidences.
During the course of a career, paralegals will change employment, switching law firms, governmental entities or corporate legal departments, perhaps even leaving the legal field entirely. Paralegals do not have clients because they do not practice law. Even so, does a paralegal have an ethical duty to protect confidential information regardless of whether they are currently employed by the client s attorney? The answer is yes.
Our Code of Ethics and Professional Responsibility says that we are to know the provisions of the attorneys code and are to avoid any action which might involve an attorney in a violation of that code or even the appearance of professional impropriety. 1 So, even though the Texas Disciplinary Rules of Professional Conduct my not govern us directly, we are governed by it through a supervising lawyer.
Our Code of Ethics and Professional Responsibility also states that:
A legal assistant shall preserve and protect the confidences and secrets of a client.
See Code of Ethics and Professional Responsibility of the Paralegal Division of the State Bar of Texas, Canon 4.
To understand the reasoning that gives rise to this duty, consider the fiduciary relationship between a lawyer and client. Both lawyer and client need the ability to freely discuss matters related to the representation in order for the lawyer to be fully informed of his client s situation and for the client to fully understand the choices available under our legal system. Potential clients would be reluctant to seek legal assistance if they believed their personal information would not be held in confidence or, even worse, used against their interests or in order for the lawyer s personal financial gain.
This issue was addressed in Texas Ethics Opinion 472 2, where the question presented dealt with whether a law firm should be disqualified following the change of employment of non-lawyer staff. (The opinion refers to the staff in turn as secretary, legal assistant and secretary/legal assistant as if the terms were interchangeable. For the purposes of this article, the non-lawyer staff will hereafter be referred to as paralegal ). During a lawsuit, one of the attorneys fires his right hand paralegal, with bad feelings existing between them. The former paralegal soon takes employment as a paralegal at the opposing law firm. Both firms are small, with less than five attorneys. The Ethics Commission concluded that so long as the supervising lawyer of the paralegal complied with Rules 1.05 concerning client confidences and complied with 1.06 and 1.09 concerning conflicts of interest and former client conflicts of interest so as to ensure the paralegal s conduct was compatible with the professional obligations of a lawyer, then under the Disciplinary Rules, the new law firm was not ethically required to disqualify itself from representation of a party adverse to the former employer s client. 3
To unpack this ethics opinion, we consult Rules 1.05, 1.06 and 1.09 of the Texas Disciplinary Rules of Professional Conduct wherein the confidences of a client or confidential information, conflicts of interest and former client conflicts of interest are defined.
According to Rule 1.05(a):
Confidential information includes both privileged information and unprivileged client information. Privileged information refers to the information of a client protected by the lawyer-client privilege of Rule 5.03 of the Texas Rules of Evidence or of Rule 5.03 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 5.01 of the Federal Rules of Evidence for United States Courts and Magistrates. Unprivileged client information means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.
See Rule 1.05(a), Texas Disciplinary Rules of Professional Conduct.
It is important to remember that both privileged and unprivileged client information is to be protected. Unprivileged information by definition is broad in scope and includes any information relating to or furnished by the client during the course of representation. Unless it is a matter of public record or widely known, even the fact that the lawyer or firm has been consulted by or has decided to represent the client should be held in confidence as unprivileged information.
Rule 1.05(b) sets out the instances under which a lawyer may knowingly reveal confidential or privileged information of a client or former client.
(b) [A] lawyer shall not knowingly:
See Rule 1.05(b), Texas Disciplinary Rules of Professional Conduct.
You can see that without the client’s permission, a lawyer may not reveal any confidential client information, including unprivileged information, to anyone other than the client, the client s representatives or the lawyer s firm. In some instances, the client may choose to restrict the dissemination of this information to only certain members and employees of the lawyer s firm. Even if the client were not to restrict the dissemination of its confidential information to only certain persons within the lawyer s firm, the best way to safeguard confidential information is by disseminating it only on a need to know basis.
A lawyer is permitted to reveal unprivileged information in certain instances, such as when the lawyer has reason to believe it is necessary in order to carry out effective representation, to defend the lawyer against claims of wrongful conduct, to respond to allegations in proceedings concerning the lawyer s representation or to prove the legal services rendered or the value of those services in an action against someone other than the client who is responsible for payment. 4
A lawyer is permitted to reveal confidential information in certain instances as well, such as when the client is likely to commit a criminal or fraudulent act resulting in death or substantial bodily harm, or in instances where breach of duty by either the lawyer or the client to the other is claimed. 5 The requirement of confidentiality also applies to government lawyers who may disagree with the policy goals that their representation is designed to advance. 6
This brings us to an understanding of the first portion of the Ethics Committee s conclusion. The supervising lawyer of the paralegal must comply with Rule 1.05 to protect client confidences. A client confidence is any information about the client gained during the course of representation. The fact that the client consulted the attorney or, in the absence of public record or being widely known, that the lawyer was representing the client could be construed as a client confidence. A paralegal has an ethical duty to safeguard both privileged and unprivileged client information regardless of whether they are currently employed by the client s attorney.
Citations for Parts 1 and 2:
Laurie Borski is Chair of the Professional Ethics Committee of the Paralegal Division, State Bar of Texas. She has served on the Division s Annual Meeting and Election Committees and is a past president of the Alamo Area Professional Legal Assistants in San Antonio.