What You Should Know About Conflicts of Interest and the Kansas Rules of Professional Conduct
| Jurisdiction | Kansas,United States |
| Citation | Vol. 71 No. 3 Pg. 27-31 |
| Pages | 27-31 |
| Publication year | 2002 |
71 J. Kan. Bar Assn. 3, 27-31 (2002). What you should know about conflicts of interest and the Kansas Rules of Professional Conduct
71 J. Kan. Bar Ass'n, March. 2002, 27-31 (2002)
The Secretary you are about to hire may cause your firm to be disqualified from representing its clients.
Editor's Note: This is the first in a series of ethics articles Mr. Breer will be writing for The Journal. They will not be published in consecutive issues.
I. Introduction
Some say we are a "mobile" society. Indeed, it is increasingly rare for a person to begin and end his or her career at the same job. While moving from one job to another may not cause problems in most lines of work, moving from one law firm to another creates special problems inherent in the legal arena. While there are ethical rules governing a lawyer's movement from one law firm to another, and even rules governing a lawyer's movement from government practice to private practice, there are no rules governing a nonlawyer's change of employment within the legal profession. Support staff conflicts are a growing concern for lawyers and their clients.[1] The Kansas Supreme Court recently addressed the issue of imputed disqualification arising from the movement of a nonlawyer from one law firm to another. This article addresses the ethical problems raised when a nonlawyer moves from one firm to another, and discusses the recent Kansas Supreme Court opinion, which significantly impacts the hiring of nonlawyers.
II. Kansas Rules of Professional Conduct 1.10 and 5.3
The Kansas Rules of Professional Conduct ("Rules" or "KRPC") define and govern ethical conduct of lawyers in Kansas. The Rules provide guidelines for imputed disqualification of lawyers. KRPC 1.10 states:
(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9, or 2.2.
(b) When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(b) that is material to the matter.
The Rules do not specifically address imputed disqualification resulting from a nonlawyer's change of employment. KPRC 5.3, however, does set forth the supervisory obligations an attorney has with their staff and states:
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
III. Zimmerman v. Mahaska Bottling Company
The Kansas Supreme Court recently had the opportunity to decide what effect a nonlawyer's movement from one law firm to another has upon the practice of law in Zimmerman v. Mahaska Bottling Company.[2] In Zimmerman, a minor plaintiff was injured when a vending machine tipped over on top of him. Zimmerman and his mother retained the law office of Dickson & Pope located in Topeka, Kansas. "A negligence and products liability suit" was filed against the vending machine manufacturer, Pepsi Cola Bottling of Salina, and Mahaska Bottling Company. Fisher, Patterson, Saylor & Smith ("Fisher Patterson") in Overland Park was retained to represent Pepsi and Mahaska. The plaintiff subsequently filed a motion to disqualify Fisher Patterson from representing Pepsi and Mahaska, citing KRPC 1.10. The plaintiff argued that Kaye French, a former legal secretary at Dickson & Pope, had acquired material and confidential information about the case while working there, and her subsequent employment at Fisher Patterson required imputed disqualification of that firm.[3]
The district court held an evidentiary hearing to consider whether French acquired "material and confidential information" during her previous employment.[4] The district court heard testimony from a legal assistant who worked at Dickson & Pope, the attorney for Zimmerman, and from French. French testified that she did not know how much the case was worth or whether any experts had been retained by Dickson & Pope. She further...
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