Ethical Walls and Attorney Disqualification

Ellen Lockwood, CLAS

Ellen Lockwood, CLAS

Canon 7 of the Code of Ethics of the Legal Assistants Division states as follows:

A legal assistant shall avoid, if at all possible, any interest or association which constitutes a conflict of interest pertaining to a client matter and shall inform the supervising attorney of the existence of any possible conflict.

Ethical Walls and Attorney Disqualification

After much searching, you have finally found your dream job. You can’t wait to get started. However, if you aren’t careful, you could cause your new employer major problems, or even the loss of a case or client, because of work you did in your previous position.

More and more often, firms are taking extensive steps to screen all new hires for potential conflicts, and to erect ethical walls around personnel who might have had any contact with opposing counsel on a particular case.

In my large law firm, twice-daily conflict sheets are circulated which include not only potential new legal matters and clients, but lists of past employers for potential new employees. Attorneys are asked to contact personnel if the potential new hire has worked for a party or attorney which is adverse to a current case or client. Although that may appear a bit extreme, the larger our firm gets, the more necessary it is to prescreen for conflicts.

When my firm hires a paralegal who has worked for opposing counsel or an opposing client, the entire firm is notified that an ethical wall is to be erected around the legal assistant and that no one may do the following:

1. Discuss the case in the presence of the paralegal
2. Allow the paralegal access to any documents, including keeping all files locked away from any cabinets to which the paralegal would normally have access.
3. Engage in any discussions with the paralegal about her prior work on the case or work her previous firm may have done.

All these precautions are necessary to avoid the firm’s possible disqualification in the case. In Texas, firms have been disqualified for hiring paralegals and legal secretaries that previously worked for opposing counsel. Even an ethical wall is no guarantee that opposing counsel will not file a motion to disqualify your firm, despite the fact that the motion may ultimately be denied. In the course of defending such a motion, firms may be required to produce billing records and other documents, and provide documentation of any ethical wall that was erected around the person in question.

Texas case law is clear that it is presumed that a legal assistant receives confidential information while working on a case. Phoenix Founders, Inc. v. Marshall, 887 S.W.2d 831, 834 (Tex. 1994). Therefore, the burden is not on the prior firm for which the paralegal worked, but on the new firm to overcome the presumption that confidential information about the case was disclosed. The Texas Supreme Court has stated that the only way that assumption can be overcome is to instruct the paralegal not to work on any matter on which the paralegal worked during her previous employment or on any matter which the paralegal has information based on her prior attorney’s representation, and “to take other reasonable steps to ensure that the paralegal does not work in connection with matters on which the paralegal worked during the prior employment, absent client consent.” Id. at 835. This consent must be obtained from the client of the previous attorney, not the current client.

In a recent Texas Supreme Court decision, two co-counsel firms representing the plaintiffs were disqualified when a person hired by the defendant’s counsel to perform work often performed by a legal assistant was subsequently hired by one of the plaintiffs’ counsel. In Re American Home Products Corporation 1999 WL 2531 (Tex. 1998). Although the plaintiffs’ firm argued that the employee in question did not reveal any confidential information to her new firm, the Court states that the plaintiffs’ firm should have taken measures to ensure that the employee did not work on the case on which she worked for the defendant. On the contrary, the plaintiffs’ firm allowed her to continue to work on that case, performing the same tasks she had performed for the defendant’s counsel. The other plaintiffs’ firm was also disqualified because steps were not taken to prevent her from interacting with co-counsel.

Part of the argument of the attorneys for the plaintiffs was that the employee was only a contract or freelance employee of counsel for the defendants. The Court, however, stated that it is common for attorneys or law firms to hire contract or freelance paralegals or attorneys. The Court reasoned that since contract or freelance paralegals and attorneys perform the same kind of work as a firm employee, they must abide by the same professional obligations.

What does all this mean to you? Extra effort in looking for a new job in order to avoid disqualifying your potential new employer. For example, a paralegal acquaintance found it difficult to find a new job because she had worked for a large firm which was on the opposing side of almost every other large firm in town. If you are contemplating changing jobs, be certain your potential new employer is aware of the cases and clients for which you have worked before you begin your new job. In addition, be prepared to assist your new employer in determining how best to develop an ethical wall to shield you in the event of a possible conflict. If you are a freelance or contract paralegal, keep a running list of each firm for which you have worked, as well as the cases and clients for which you have worked. With a little effort, you will be able to change jobs without the possibility of attorney disqualification.

Ellen Lockwood, CLAS, is the Chair of the Professional Ethics Committee of the Legal Assistants Division, a position she has held since 1997. She is Treasurer of LAD and a past president of the Alamo Area Professional Legal Assistants in San Antonio.