Dec. 21, 2016 – Does a firm who hires a recently graduated lawyer need to implement screening procedures if they become aware of a conflict while the new lawyer was a law student?

Question

I’ve got my first job out of law school, but I’m worried about conflicts. I clerked at two different firms in the same city during law school and was surprised to get a good offer from a third firm. The city where I work is not that large, and my new firm is opposed to the two firms where I clerked during school in several matters.

I’ve heard conflicting things: some lawyers say I don’t have to worry about any conflicts from my days as a law clerk because I wasn’t a lawyer. Other people tell me I’m conflicting my firm out of those matters in which my former firms represent the opposing parties.

What’s the deal?

Answer

When a lawyer joins a new firm, that lawyer brings their conflicts into the firm and, for the most part, imputes those conflicts to all the other lawyers in the firm. See SCR 20:1.10. That Rule, however, makes no mention of nonlawyer support staff, but Comment [4] to SCR 20:1.10 states:

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. Nor does paragraph (a) prohibit representation if the lawyer is prohibited from acting because of events before the person became a lawyer, for example, work that the person did while a law student. 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. See Rules 1.0(k) and 5.3.

Comment f to Sec. 123 of the Restatement (Third) of the Law Governing Lawyers provides further guidance:

f. Imputed conflicts through nonlawyer employees. Nonlawyer employees of a law office owe duties of confidentiality by reason of their employment (see Restatement Second, Agency § 396). However, their duty of confidentiality is not imputed to others so as to prohibit representation of other clients at a subsequent employer. Even if the person learned the information in circumstances that would disqualify a lawyer and the person has become a lawyer, the person should not be regarded as a lawyer for purposes of the imputation rules of this Section.

Law students who clerk in firms, like other nonlawyer employees, typically have limited responsibilities and thus might acquire little sensitive confidential information about matters. Absent special circumstances, they should be considered nonlawyer employees for the purposes of this Section. Persons who have completed their legal education and are awaiting admission to practice at the time of providing services to a client of a law firm typically have duties comparable to admitted lawyers and accordingly should ordinarily be treated as lawyers for purposes of imputation.

Some risk is involved in a rule that does not impute confidential information known by nonlawyers to lawyers in the firm. For example, law students might work in several law offices during their law-school careers and thereby learn client information at Firm A that could be used improperly by Firm B. Experienced legal secretaries and paralegal personnel similarly often understand the significance and value of confidential material with which they work. Incentives exist in many such cases for improper disclosure or use of the information in the new employment.

On the other hand, nonlawyers ordinarily understand less about the legal significance of information they learn in a law firm than lawyers do, and they are often not in a position to articulate to a new employer the nature of the information gained in the previous employment. If strict imputation were applied, employers could protect themselves against unanticipated disqualification risks only by refusing to hire experienced people. Further, nonlawyers have an independent duty as agents to protect confidential information, and firms have a duty to take steps designed to assure that the nonlawyers do so (see § 60, Comment d). Adequate protection can be given to clients, consistent with the interest in job mobility for nonlawyers, by prohibiting the nonlawyer from using or disclosing the confidential information (see § 124) but not extending the prohibition on representation to lawyers in the new firm or organization. If a nonlawyer employee in fact conveys confidential information learned about a client in one firm to lawyers in another, a prohibition on representation by the second firm would be warranted.

Thus, while the general rule is that new lawyers will not impute conflicts resulting from their work as a law student, if the law firm does not implement timely screening procedures when aware of a possible conflict or solicits relevant information from the former law student, disqualification may result.

Law students and firms should do the following to avoid disqualification:

1. Law clerks should keep track of the matters that they work on while clerking. Once hired as a lawyer, these matters should be disclosed and entered into the firm’s conflict checking system as a normal part of the hiring process.

2. Other than the disclosure in step 1, law clerks should treat as confidential all information learned about clients while working as a law clerk. Firms that hire the former law clerk should remind the former clerk to be mindful of confidentiality. See SCR 20:5.1 for the responsibility of supervisory lawyers within law firms.

3. When the new lawyer or the firm become aware of a conflict arising from former work as a law clerk, screening procedures should be implemented. See SCR 20:1.0(n) and accompanying Comment for a definition of adequate screening procedures.

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