Opinion 86-5
FLORIDA BAR ETHICS OPINION OPINION 86-5 August 1, 1986 Advisory ethics opinions are not binding. A law firm that hires a nonlawyer who was employed by an opposing law firm has a duty not to seek or permit disclosure by the employee of the confidences or secrets of the opposing firm’s clients. The firm from which the employee departs has a corresponding duty to admonish the employee that he or she is obligated to preserve the confidences and secrets of the clients. Note: While opinion 86-5 permits screening of nonlawyer employees to avoid conflicts of interest, it does not purport to address the possibility of disqualification in litigation. See Apopka v. All Corners, Inc., 701 So.2d 641 (Fla. 5th DCA 1997); Esquire Care, Inc. v. Maguire, 532 So.2d 740 (Fla. 2d DCA 1988). But see Koulisis v. Rivers, 730 So.2d 289 (Fla. 4th DCA 1999); Lackow v. Walter E. Heller & Co., 466 So.2d 1120 (Fla. 3d DCA 1985). CPR: RPC: Preamble, DR 3-104(C); DR 4-101(E) Rule 4-1.4; Rule 4-5.3 The Committee has been asked to consider how the conflict-of-interest and confidentiality rules apply when nonlawyer employees move from one law firm to another. The issue usually arises when a paralegal, legal assistant or legal secretary “switches sides” — that is, moves from one firm to a second firm that is opposing counsel in some matter after having worked on the matter for the first firm or having otherwise been exposed to confidences and secrets of the first firm’s client. DR 4-101(E) requires a lawyer to “exercise reasonable care to prevent his employees ... from disclosing or using confidences or secrets of a client.” DR 3-104(C) requires a lawyer or law firm to “exercise a high standard of care to assure compliance by the nonlawyer personnel with the applicable provisions of the Code of Professional Responsibility.” See Proposed Rule of Professional Conduct 4-5.3 (“Responsibilities Regarding Nonlawyer Assistants”). The Preamble to the Code of Professional Responsibility recognizes: Obviously the canons, ethical considerations, and disciplinary rules cannot apply to nonlawyers; however, they do define the type of ethical conduct that the public has a right to expect not only of lawyers but also of their nonprofessional employees and associates in all matters pertaining to professional employment. A lawyer should ultimately be responsible for the conduct of his employees and associates in the course of the professional representation of the client. The Code does not directly regulate the conduct of nonlawyer employees of a law firm. The Code recognizes, however, that nonlawyer employees necessarily share in confidential and secret information and therefore necessarily share the attorney’s ethical obligation not to disclose or use such information without the client’s consent. For that reason, lawyers are required to use care to ensure that their nonlawyer employees appreciate and conduct themselves in accordance with the shared duty of confidentiality. Thus, while the new employer of an attorney who switched sides would be disqualified automatically from representation in the matter, the new employer of a nonlawyer employee who switched sides would not be disqualified. However, both the hiring firm and the former firm still must meet their obligations under DR 4-101(E) and DR 3-104(C). That is, the former firm has a duty to admonish the departing employee that the employee has an ethical or moral obligation not to reveal confidences or secrets of any client to the hiring firm. The hiring firm has a corresponding duty not to seek or permit a disclosure of confidences or secrets by the employee and not to use such information. The former firm has a second duty when a paralegal or legal assistant switches sides. If the employee had a close relationship with the client, the former firm must advise the client of the employee’s departure and new employment. The client is entitled to be kept informed of significant developments in the representation. Proposed Rule of Professional Conduct 4-1.4 (“Communication”).