Conflicts & nonlawyer staff

This situation arose this week via inquiry:

  • Mike – we’ve been approached by a prospective client who is getting divorced.  The spouse’s business deals are a significant issue in the divorce.  Our paralegal used to work at the firm that is representing the prospective client’s spouse. The paralegal may have worked on some business deals for prospective client’s spouse.  Can we represent the prospective client in the divorce?

What say ye?

  • A.  No. Paralegal has a conflict and it’s imputed to every lawyer in the caller’s firm
  • B.  Yes.
  • C.  Yes, because even if paralegal has a conflict, it is not imputed to the lawyers in the caller’s firm. Of course, paralegal must not have any involvement with the divorce or share information about spouse’s business deals.
  • D.  Mike, the answer is “C,” but you probably shared some practical reasons for the caller to think twice about representing the prospective client.

Rule 1.10 is our rule on imputed conflicts.  Per Rule 1.10(a), most of a lawyer’s conflicts are imputed to all other lawyers in the same firm.  Essentially, if Mike can’t represent potential client, neither can any of the lawyers in Mike’s firm.

There are exceptions.  And one covers Mike’s paralegal.

Here’s the first line of Comment [4] to Rule 1.10:

  • “The rule in paragraph (a) also does not prohibit representation by others in the law firm where the person prohibited from involvement in a matter is a nonlawyer, such as a paralegal or legal secretary.”

The Comment continues:

  • “Such persons, however, ordinarily must be screened from any personal participation in the matter to avoid communication to others in the firm of confidential information that both the nonlawyers and the firm have a legal duty to protect.”

This is not a new development in the law of lawyering.  Indeed, the oldest available advisory opinion from the VBA’s Professional Responsibility Committee is Opinion 78-02. In it, the Committee opined:

  • “A firm is not disqualified from handling a case because a paralegal employed in the firm formerly was enrolled in a paralegal training clinic which provided representation to an opposing party in litigation handled by the firm even though the paralegal had some involvement in that representation as long as the paralegal has no present involvement in the case and conveys no confidential information to firm attorneys.”

So, here again is the question I asked above:

What say ye?

  • A.  No. Paralegal has a conflict and it’s imputed to every lawyer in the caller’s firm
  • B.  Yes.
  • C.  Yes, because even if paralegal has a conflict, it is not imputed to the lawyers in the caller’s firm. Of course, paralegal must not have any involvement with the divorce or share information about spouse’s business deals.
  • D.  Mike, the answer is “C,” but you probably shared some practical reasons for the caller to think twice about representing the prospective client.

Under the rule, “C” is correct.  However, there are practical reasons that the caller should think twice about handling the prospective client’s divorce. So, “D” is the best answer.

Using the hypo as a construct, here are two practical considerations that I often share with lawyers who call to discuss potential conflicts.  There might be others.

  1. Even if it isn’t a conflict, do you want to deal with spouse filing a disciplinary complaint against you?
  2. Even if it isn’t a conflict, if the other side moves to disqualify you and your firm, it will cost the prospective client time and money.

Conflicts can be tough.  Don’t hesitate to call if you want to talk one through.

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