Can a non-lawyer staff member who joins your firm bring with her a conflict of interest that may be imputed to your firm and disqualify you from representing your client? It can happen.
In this age of employment mobility, staff members may come to your firm after having worked for opposing counsel on cases (or transactions) that you are handling. The staffer’s exposure to the other side’s confidential information can raise a conflict of interest that knocks you and your whole firm out of the box.
Many jurisdictions allow law firms to resolve the potential problem at the front end with an ethical screen. Georgia has recently joined the list.
In Hodge v. URFA-Sexton, LP, the Georgia Supreme Court noted that the majority of courts reject the idea that non-lawyer conflicts are automatically imputed to the rest of the firm. Rather, most jurisdictions now allow firms to raise a screen to protect the confidential information that a non-lawyer has gained during prior employment.
This made sense to the Hodge court for several reasons:
- Non-lawyers lack a financial interest in the outcome of litigation, and don’t have a choice about what clients they serve;
- Non-lawyers have different training and responsibilities, and a different level of access to confidential information than lawyers do;
- Disqualifying a firm based on a staff member’s conflict of interest works a hardship to the new firm’s client; and
- A rule of automatic imputation would unduly restrict non-lawyer employment mobility.
Interestingly, Georgia limits screening as a way to avoid imputed conflicts of interest — only former public sector employees, arbitrators and judges (and now non-lawyers) can be screened in order for the firm to avoid being disqualified.
In Ohio, non-lawyer screening was approved in Green v. Toledo Hospital, where the Ohio Supreme Court held that imposing the presumption that a secretary who worked for opposing counsel shared in client confidences would “unfairly taint” her. Applying the presumption would make it particularly difficult for non-lawyer personnel in small towns, where the pool of available employers (and employees) is limited.
Other jurisdictions have adopted similar rules, either via ethics opinions or decisional law, including the District of Columbia, New York, Florida, Nevada and Oklahoma.
When a non-lawyer staff member migrates to your firm, remember that you may need to consider a timely ethical screen in order to prevent a costly disqualification headache.