Opinions of the General Counsel, 0113 ALBJ, 74 The Alabama Lawyer 70 (2013)
| Author | J. Anthony McLain |
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\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Imputed Disqualification of Law Firms When Non-Lawyer Employees Change Firms
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0QUESTION:
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In formal opinions RO-91-01 and RO
91-28, the Disciplinary Commission of the Alabama State Bar held, in substance, that conflicts of interest resulting from non-lawyer employees changing law firms can be overcome by building a "Chinese wall" to screen the newly hired employee from involvement with any matter on which the employee worked while employed at his or her old firm. In recent years, however, an increasing number of jurisdictions have concluded that such screening procedures are ineffective when a non-lawyer employee has obtained confidential information concerning the matter in litigation. Consideration of the positions taken by these jurisdictions calls into question the factual and ethical validity of the rationale upon which these two opinions were predicated and the Disciplinary Commission has, therefore, determined that the conclusions reached therein should be reconsidered.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0ANSWER:
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0A non-lawyer employee who changes law firms must be held to the same standards as a lawyer in determining whether a conflict of interest exists. A firm which hires a non-lawyer employee previously employed by opposing counsel in pending litigation would have a conflict of interest and must therefore be disqualified if, during the course of the previous employment, the employee acquired confidential information concerning the case.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0DISCUSSION:
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In some jurisdictions the "Chinese wall" cure for conflicts resulting from changing firms has been applied to lawyers as well as non-lawyers. The Alabama Supreme Court, however, has taken the position that the "Chinese wall" concept should not apply to practicing lawyers. In Roberts v. Hutchins, 572 So.2d 1231 (Ala. 1990), the court held, by way of dicta, that the "Chinese wall" could not provide an effective screen to attorneys in private practice but should apply only to government or other publicly employed attorneys. 572 So.2d 1231, 1234 at n. 3.
\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0More significantly, in 1990, the Alabama State Bar proposed, and the Alabama Supreme Court adopted, the Alabama Rules of Professional Conduct, which became effective January 1, 1991. Rule 1.10(b) of the Rules of Professional Conduct ...
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