Risk Update

Law Firm Ethics & Compliance — Ethical Screening Staff, ABA on Lawyer-Client Communication Concerns

From Shari L. Klevens, partner at Dentons US: “Pay Attention to Conflict Issues in Hiring Nonlawyer Staff” —

  • “The potential for conflicts of interest is not limited to attorneys. As the ethical rules recognize, the same considerations regarding the disclosure of a former client’s confidential information are present where a paralegal, legal assistant, or other nonlawyer moves from one firm to another. For that reason, firms and attorneys can be subject to some of the same restrictions based on the prior work of a nonlawyer as they would for a conflicted lawyer.”
  • “California courts have also weighed in on the issue. In Kirk v. First Am. Title Ins. Co., the California Court of Appeals observed that when a tainted non-attorney employee of a law firm, possessing confidential case information, moves to an opposing law firm, vicarious disqualification of the opposing law firm is not necessary if the employee is effectively screened… Kirk further applied the same rule to a non-retained expert, which is another area that can give rise to potential conflicts but often is overlooked.”
  • “The majority of states that have addressed this issue have similarly found that appropriate ethics screens may avoid an imputed conflict of interest when a nonlawyer brings a conflict to a new firm. For example, in Hodge v. Urfa-Sexton, LP, the Georgia Supreme Court held that the screening of nonattorney staff ‘is a permissible method to protect confidences held by nonlawyer employees who change employment.’ 295 Ga. 136 (2014). The court explained that a nonattorney’s conflict of interest may be remedied if the law firm employing that nonattorney uses effective and appropriate screening measures and promptly discloses the conflict.”
  • “Conflicts can be an important consideration prior to the actual hiring of nonattorney staff. Some firms use a written application that inquires about the candidate’s prior legal employment, relationships with attorneys, and legal experience. If the conflicts system reveals that the prospective nonattorney staff hire has worked for, has experience with or is related to matters involving clients of the firm, then the hiring firm can conduct further inquiry.”
  • “Indeed, the definition of ‘screened’ in the California Rules of Professional Conduct refers to the “timely imposition of procedures” to protect against the disclosure of information, which can be easier to accomplish if the firm has knowledge of potential issues in advance of hiring.”
  • “The comments to Rule 1.10 further suggest that the obligation to identify potential conflicts among nonlawyers and to implement screening measures is part of an attorney’s responsibilities in managing or supervising nonlawyers pursuant to Rule 5.3.”

New ABA ethics opinion clarifies obligations for language access in lawyer-client relationships” —

  • “Attorneys often must take affirmative steps to ensure that they can communicate effectively with clients with limited English proficiency or with those with noncognitive physical disabilities, such as a hearing or a speech impairment.”
  • “This may require the lawyers to engage an interpreter, translator or other assistive or language-translation technology, according to an ethics opinion released Wednesday by the ABA’s Standing Committee on Ethics and Professional Responsibility.”
  • “The bulk of the opinion explains that when confronted with clients with language barriers, lawyers must obtain a qualified, impartial interpreter or translator who can understood and explain the law and legal concepts in the language of the clients.”
  • “Lawyers may use ‘a multilingual lawyer or nonlawyer staff member within the firm to facilitate communication with a client.'”
  • “The opinion adds that sometimes a friend or family member of the clients may function as the interpreter. But in these instances, lawyers must take particular care to ensure that such a friend or family member is not biased by a personal interest.”
  • “If lawyers cannot obtain such an interpreter or translator without incurring ‘an unreasonable financial burden’ on the attorneys or the clients, then the attorneys should either decline or withdraw from representation.”
  • “Finally, the opinion explains that attorneys must be cognizant of ‘social and cultural differences that can affect a client’s understanding of legal advice, legal concepts, and other aspects of the representation.’ The lawyers cannot assume that an interpreter or translator understands these social and cultural differences simply because the person can interpret and knows the client’s language.”