Do Your Clients' Confidences Go out the Window when Your Employees Go out the Door

Authors

Kelly A. Randall

Abstract

Recent years have seen a remarkable increase in the employment of nonlawyer support staff in the legal profession. Lawyers frequently hire secretaries, legal assistants, law clerks, investigators, file clerks, office managers, and law students to increase the efficiency and cost-effectiveness of legal services. As these nonlawyers are given greater responsibility, the risk that their employment may create conflicts of interest increases. If a nonlawyer employee has obtained confidential client information during her employment and then goes to work for another law firm that represents interests adverse to the former firm's client, the potential for a serious conflict of interest arises. Although judges, lawyers, lay personnel, and clients need to know what is and is not permitted, only a handful of states have addressed the issue, and no state has a conflict of interest rule that effectively regulates nonlawyer employee conflicts of interest.

This Note proposes that states adopt legislation to regulate a firm's hiring of nonlawyers with conflicts of interest. Using the existing case law of attorney and support staff conflicts of interest, the author formulates a rule and proposes a method for applying this rule. The proposed rule would clearly delineate when a firm may hire a lay employee from another firm and when it may not. In this era of increased employment of nonlawyer support staff, the need to protect client confidences requires that such a rule be adopted and implemented.

Recommended Citation

Kelly A. Randall, Do Your Clients' Confidences Go out the Window when Your Employees Go out the Door, 42 Hastings L.J. 1667 (1991).
Available at: https://repository.uclawsf.edu/hastings_law_journal/vol42/iss6/4