Daniel J. Siegel wries: “Confidentiality Isn’t Just for Lawyers: Why Law Firm Staff Ethics Matter as Much as Lawyer Ethics” —

• “Recently, a trial court entered an order allowing limited discovery of a law firm’s IOLTA account in a divorce proceeding. Of course, IOLTA accounts contain confidential information, including the names of parties, settlement amounts and much more. While the order was, for the most part, reasonably tailored to preserve confidentiality—almost every identifying factor about the account was to be redacted—there were a couple of lines in the order that stopped me dead in my tracks.”
• “The judge wrote that the clients’ ‘identities were not confidential as to the staff if they were privy to them at the time they worked for the firm.’ I was shocked at the comment.”
• “Everyone knows, I thought, that confidentiality applies not only to lawyers but also to everyone who works for them, and even applies to legal assistants outside the firm. This point was made even clearer when Model Rule of Professional Conduct 5.3 was amended, as was its counterpart under the Pennsylvania Rules of Professional Conduct. Comment [3] to the Pennsylvania Rule to emphasize this point.”
• “Yet this judge misapprehended the rule and, in fact, stated that the information was confidential only to the lawyers, not to the staff. Respectfully, the court erred.”
• “Against this backdrop, I am writing to clarify the Rules of Professional Conduct regarding confidentiality and to emphasize a few points related to that concept.”
• “Lawyers consider confidentiality their professional birthright. It is one of the ingredients baked into their licenses, enforced by disciplinary boards, and hammered home every day of law school. But in the modern law firm, which often relies on so many components—in and out of the office—confidentiality is a shared ethical ecosystem.”
• “One commentator called today’s legal practice a team sport. There are so many components. Paralegals, assistants, intake specialists, billing staff, IT professionals, marketing teams, and outside vendors routinely have access to information that they would never have only a few years ago. At the same time, technology has made the transmission of information effortless, I would say too effortless in many ways. A chat message, an email, or an AI query can expose confidential information in seconds. That is why Rule 5.3 was amended, years before generative AI made information disclosure even easier.”
• “The truth is this: Most confidentiality breaches aren’t the result of bad actors or intentional misconduct. They come from a fundamental misunderstanding of the rules. Look at Pennsylvania’s Public Access Policy. It was meant—again, before generative AI—to protect confidential information. Yet lawyers often pay lip service; they check the box but don’t verify for confidential data. God knows, lawyers are still emailing medical records, still not recognizing that email is as confidential as a postcard. And they never think twice.”
• “That is why, now more than ever, it is important to consider who is bound by the rules of ethics, what ‘confidential’ really means, and where the invisible lines lie when using ever-changing modern tools. Three misconceptions, in particular, continue to create risk for firms of all sizes.”
• “Many firms train their lawyers on confidentiality. Far fewer invest the same energy in training their nonlawyer staff. This gap persists despite the fact that, ethically and practically, nonlawyer employees are extensions of the lawyer.”
• “Under the Rules of Professional Conduct, lawyers are responsible for ensuring that their staff’s conduct is compatible with the lawyer’s own ethical obligations. That means when a staff member mishandles confidential information, the lawyer—and by extension everyone in the firm—must bear responsibility.”
• “Still, many staff members view confidentiality as an abstract concept. They probably know they should not gossip. They probably know not to post client names on social media. But do they really understand that confidentiality also extends to intake calls, internal conversations, drafts, metadata, billing narratives or scheduling details? And do they realize that confidentiality extends to the fact that a particular person is a client?”
• “The risk is compounded by the reality that staff often operate at the crossroads of information. An intake specialist hears unfiltered facts before a conflict check is complete. A legal assistant may see drafts that never make it into a final pleading. A billing professional reads time entries that describe strategy, vulnerabilities or settlement posture. IT personnel may have broad system access without any substantive legal context for what they are seeing.”
• “When staff members are not taught that confidentiality is their obligation—not just the lawyer’s—they may default to their everyday norms and not their professional ones. What may be harmless in another industry becomes a time bomb in a law firm.”
  Policies do not create a culture of confidentiality. They are created by clear explanations of why these rules exist. Staff who understand that confidentiality protects clients, the firm, and their own professional standing are far more likely to treat it with the seriousness it deserves.”
• “No discussion of modern confidentiality is complete without addressing artificial intelligence. AI tools are rapidly becoming part of everyday workflows, from drafting emails to summarizing documents to brainstorming arguments. Used carefully, they can be powerful. Used casually, they can be dangerous.”
• “The core problem is not that AI is inherently unethical. It is that many users do not understand how these tools process, store or reuse information. When someone types in client details into a generative AI prompt, they may be disclosing that information to a system outside the firm’s control, subject to terms of service they have never read.”
• “The ‘elevator test’ is a useful metaphor. Doctors have long been warned not to discuss patient matters in elevators where conversations can be overheard. It is obvious why. AI warrants the same level of caution from lawyers and law firm staff. If you could not comfortably speak a sentence aloud in a crowded elevator, don’t paste it into an AI prompt, especially the more public forms of AI that make it clear there are no privacy protections.”
• “What ties these three issues together is not technology or rules. It is culture. Confidentiality failures rarely occur because someone wants to violate their ethical duty. They happen because the firm failed to train its staff or adapt its old principles to new tools.”
• “There is a solution. First, treat all staff as professionals with ethical responsibilities, not as passive support. Second, give on-point guidance. Third, acknowledge that technology changes how confidentiality is threatened, but not why it matters.”
• “Confidentiality remains one of the legal profession’s defining principles. Preserving it requires more than rules. It requires every person in the firm—lawyers and nonlawyers—to recognize and understand that ethics is not someone else’s job. It is everyone’s responsibility.”

“Conflicts of Interest in Family Law Matters” —

• “Conflicts of interest can arise in any practice area, but the personal nature of family law litigation makes it all the more important for lawyers to be careful to avoid taking on representation where a conflict of interest claim could trigger a motion for disqualification or breach of fiduciary duty claim.”
• “The rules that govern lawyer conduct with respect to conflicts of interest arise out of a fundamental attorney obligation: the duty of loyalty. For practitioners in family law, as for all lawyers, that duty dictates that the lawyer’s primary concern in any representation is to protect and further the best interests of the client. If there are other interests at play that pose a risk of adversely affecting the lawyer’s ability to advocate for the client’s best interest and/or give advice untainted by other considerations, there is a conflict of interest. And in the absence of consent or where the conflict is not consentable, a conflict of interest means that the lawyer may not take on the representation.”
• “The most basic conflict of interest rule is that a lawyer may not represent a client who is directly adverse to another client, per the American Bar Association (ABA) Model Rules of Professional Conduct Rule 1.7(a)(1). To take the most obvious example of how the prohibition applies in family law: a lawyer may not represent both spouses in a marital dissolution action. That will be true even if the parties come to the lawyer together, saying that they have already worked out financial and custody issues between them and just need assistance formalizing the agreement and putting everything into writing. In such a situation a lawyer is likely to be unable to competently and diligently advise both parties.”
• “Imagine, for example, that the lawyer sees that one or more terms of the parties’ proposed agreement is unfairly detrimental to the interests of one spouse or that the agreement somehow takes advantage of one spouse’s misunderstanding of the parties’ respective rights. In that situation, the lawyer could not properly provide clarifying advice to the potentially disadvantaged spouse because such advice would likely be contrary to the interests of the other spouse (the one who would gain an advantage). But if the lawyer were to fail to give such advice, she would be exposed to a claim by the disadvantaged spouse that the inherent conflict of interest resulted not just in legal malpractice, but a breach of fiduciary duty, a much thornier claim to defend.”
• “Rule 1.7’s prohibition of direct adversity also means that a lawyer may not represent one spouse if the other spouse is a client of the lawyer in another matter, even if the other matter is unrelated to the dissolution action. And the same is true even if it is another firm lawyer who represents the adverse spouse in the unrelated matter. That is because under Rule 1.10 (Imputation of Conflicts of Interest: General Rule), the conflict of one lawyer at a firm will be imputed to all other lawyers at the same firm.”
• “Where a conflict arises out of a law firm’s representation of adverse parties in unrelated matters, such representation may be undertaken where both affected clients provide informed consent, confirmed in writing. But it may be wiser to forgo such representation. In the emotionally fraught circumstances common to so many family law matters, even to ask for consent may cause either or both of the affected clients to doubt the lawyer and the law firm’s loyalty. As explained in the Comment on Rule 1.7: ‘the client on whose behalf the adverse representation is undertaken reasonably may fear that the lawyer will pursue the client’s case less effectively out of deference to the other client, i.e., that the representation may be materially limited by the lawyer’s interest in retaining the current client.'”
• “In addition to ensuring that a prospective representation raises no conflicts with respect to a current client of the lawyer or her firm, lawyers must also consider whether there is a conflict under Rule 1.9 (Duties to Former Clients). Rule 1.9 does not create a blanket prohibition on representation adverse to a former client. Rather, under Rule 1.9, a lawyer is prohibited from undertaking representation adverse to a former client only if the new matter is ‘the same’ as, or ‘substantially related’ to, the matter in the prior representation. Where there is a claim of a former client conflict of interest—typically raised in the former client’s motion to disqualify a former attorney from representing an opposing spouse—the dispute will usually turn on whether the former matter is ‘substantially related’ to the current divorce proceedings. The Commentary to Rule 1.9 provides this gloss: ‘Matters are ‘substantially related’ for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.’ A leading resource for interpreting the Model Rules summarizes the development of the ‘substantial relationship’ analysis as follows: ‘Today, most courts and other authorities hold that the substantial relationship test is not a formalistic inquiry into degrees of closeness, but is in large measure a judgment as to whether former clients are at risk that their confidences will be turned against them.’ Geoffrey C. Hazard, Jr., W. William Hodes, Peter R. Jarvis, The Law of Lawyering, (4th Ed. 2018-2 Supp.) § 14.07.”
• “In marital dissolution matters, the question of whether there is a former client conflict commonly arises in the situation where a lawyer has previously jointly represented a married couple in their estate planning or in one or more real estate transactions, and later one of the spouses seeks the lawyer’s representation in the couple’s marital dissolution action. There are conflicting views about whether such ‘family lawyer’ representation is ‘substantially related’ when the couple subsequently divorces. In a 2005 opinion, the Oregon State Bar took the position that in most circumstances the joint estate planning representation does not present a conflict of interest with respect to subsequent representation of one of the spouses in a dissolution action. Oregon State Bar, No. 2005-148, Conflicts of Interest, Former Clients: Representing One Spouse in Dissolution after Joint Estate Planning (revised as of 2016). In that situation ‘it does not appear that Lawyer would be in possession of information relating to the representation of Husband that would not already be known to Wife or to which Wife would not otherwise have access,’ as is generally the case where there is a joint representation. By contrast, in a 2001 opinion, the New Hampshire Bar Association Ethics Committee, while not answering the question directly, offered a more cautious view: ‘It is likely that the potential to utilize information obtained during the prior matter will arise and place the lawyer in a position in which his or her obligation to protect a former client’s confidences conflicts with the obligation to represent the current client.’ New Hampshire Bar Association Ethics Committee, Practical Ethics Article, Conflict of Interest in Family Law Matters (2001).”
• “The analysis of whether matters are ‘substantially related’ for purposes of Rule 1.9 will necessarily turn on how the judge in any particular case views the underlying facts and particular circumstances of the case at issue. This can lead to considerable variation. For example, the Oregon State Bar’s conclusion that joint estate planning generally did not preclude subsequent representation rested in part on the premise that, in a joint representation, information is generally presumed to be shared and where that is the case, ‘no information-specific former-client conflict would exist.'”
• “Moreover, in a marital dissolution action, it is generally the case that the parties are required to make full disclosure of their income, assets, and other financial matters. The fact that financial information is discoverable in matrimonial cases should dictate against disqualification. This was the position a Connecticut trial court took in denying a disqualification motion in a dissolution action: ‘any disclosures to the attorney in the previous [real estate] matters were about the real estate itself or the parties’ respective sources of income-both topics subject to full disclosure in the present matrimonial action.’ Jensen v. Jensen, 2001 WL 1028897, at *2 (Conn. Super. Ct. 2001). But in a more recent decision, another Connecticut judge went in the opposite direction, granting a motion to disqualify the ‘family attorney’ from representing the husband in a divorce action, apparently concluding that disqualification was necessary to protect the wife’s confidential financial information. Lavey v. Lavey, 2020 WL 13907706, at *6 (Conn. Super. Ct. 2020).”
• “Once a lawyer has served as an arbitrator, mediator, or third party neutral in the course of a divorce proceeding, Rule 1.12(a) prohibits the lawyer from afterwards representing a party to the same proceeding. The concern with such representation is not one of client loyalty or protection of client confidences. As explained in the Rule 1.12 Comment, the prohibition follows from the fact that even though lawyers serving as third party neutrals do not have an obligation to protect client confidences, as Rule 1.6 requires, ‘they typically owe the parties an obligation under law or codes of ethics governing third-party neutrals.'”
• “The conflict of interest rules in the Model Rules do not expressly apply to an attorney who serves as guardian ad litem (GAL). But in many states, the code of conduct applicable to GALs dictates that a lawyer should decline an appointment as GAL in a matter if the lawyer, or someone at her firm, acted as counsel to, or has a prior relationship with, any of the parties, witnesses, or others connected with the family. See e.g. Commonwealth of Massachusetts, Standards for Category F Guardian ad Litem Investigators (in effect as of January 24, 2005), § 1.3.A (‘If the GAL has any prior or existing direct or indirect relationships with parties, their families, their attorneys, material witnesses, or someone else connected with the family, the GAL must consider whether the GAL’s impartiality is compromised as a result of these relationships’; situations in which a ‘GAL shall decline the appointment,’ include where ‘[t]he GAL or the GAL’s law firm previously advised or acted as counsel for a party, child, or other person closely aligned to a party, including but not limited to a party’s spouse, non-marital partner, or a material witness.’ (emphasis added)). Some states may permit service as a GAL under such circumstances, provided all parties are fully informed and waive any conflict. See e.g., Indiana State Office of GAL/CASA, Code of Ethics for GAL in Civil Family Law Cases (updated as of March 28, 2025), ¶ 11 (‘to avoid any actual or apparent conflicts of interest . . . GAL shall not serve on a case when GAL has been personally involved with a family or with the circumstances surrounding the case unless there is full disclosure of the potential conflict to all parties and any perceived or actual conflict is waived.’).”
• “Yet another situation that may give rise to a conflict is where a lawyer meets a prospective client and obtains information about the prospective client’s divorce matter, but the prospective client does not go on to become a client of the lawyer’s firm. The risk for the intake lawyer is that communications with the prospective client may disqualify the intake lawyer or her firm from representing a different client who, as it later turns out, is the other spouse, adverse to the prospective client who never became a client. Under Rule 1.18, ‘Duties to Prospective Clients,’ the extent of the risk will depend on the extent to which the intake lawyer received ‘disqualifying information’ from the prospective client, that is ‘information . . . that could be significantly harmful to’ the prospective client.”
• “But where Rule 1.10 would impute disqualification to all attorneys at a firm where one is disqualified due to a current or former client representation, under Rule 1.18(d)(2), imputation of the intake lawyer’s personal disqualification to other lawyers in the same firm may be avoided if: (1) the intake lawyer took ‘reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client’; (2) the disqualified lawyer is timely screened from any participation in the matter; and (3) the prospective client receives written notice.”
• “The prospective client dilemma is a commonplace occurrence in the area of family law, and the fact that many spouses facing a dissolution action will consult with multiple attorneys before choosing one increases the pool of potential conflicts. The Rule 1.18 Comment provides that ‘a person who communicates with a lawyer for the purpose of disqualifying the lawyer is not a ‘prospective client.’’ While this mean that a person who engages in that kind conduct would not be entitled to the protections of the Rule, difficulties of proof may limit the lawyer’s ability to rely on that provision in opposing a motion for disqualification.”