Monday, February 29, 2016

Moving Right Along (Concerning Lateral Lawyer and Passing Paralegal Conflicts)

"Recent Opinion Clarifies Conflicts in Lateral Hires" --
  • “Players in the Texas legal job market might breathe a sigh of relief after reading a recent appellate opinion. The case answers a basic question that bothers law firms that hire laterals: What happens if the new hire is conflicted out of representing a client because his old law firm represented an adverse party? Law firms worry about disqualification.”
  • “The Thirteenth Court of Appeals in In Re National Lloyds Insurance Co. embraced a precedent from the U.S. Court of Appeals for the Fifth Circuit and ruled that it would not disqualify an attorney who previously worked at a big law firm that represented an insurance company, but later moved to a smaller firm and represented a plaintiff against the insurer. The lawyer did not have a conflict of interest because at her old firm she didn't personally represent the insurer, handle any of its matters or receive confidential information about it.”
  • “Disqualification is a severe remedy, noted the opinion by Thirteenth Court Justice Gregory T. Perkes. National Lloyds alleged a prior client conflict under the disciplinary rules. The rules give guidelines about determining disqualification. Among other things, they say a lawyer who personally represented a client before can't represent an adverse party later.”
"Be Aware of Possible Conflict of Interest When Hiring Paralegals" --
  • “According to Forbes magazine, the average person changes jobs 10 to 15 times (with an average of 12 job changes) during the course of their career. With all of this employment mobility, chances are good that a staff member may apply for a job with your firm after having been employed by opposing counsel on cases or transactions that your firm is handling. If the new hire is a paralegal (or other nonlawyer), can he or she bring with him or her a conflict of interest that may be imputed to your firm? It’s possible and it’s something that hiring partners and paralegals need to be aware of before a conflict of interest arises.”
  • “The American Bar Association’s Model Guidelines for the Utilization of Paralegal Services generally require lawyers to ‘instruct clearly and to take reasonable steps to ensure that paralegals preserve client confidences.’ Beyond this, there is an added duty placed on law firm management to establish internal policies and procedures designed to provide reasonable assurance that paralegals in the firm act in a way compatible with the relevant rules of professional conduct.”
  • “The National Federation of Paralegal Associations (NFPA) and the National Association of Legal Assistants (NALA) both have codes of professional ethics that bind member paralegals. With respect to preserving client confidences, the requirements of these codes are similar to those of the model rules. However, paralegals are not required by states or the firms themselves to belong to these professional organizations in order to work for a law firm, and therefore may not even be aware of these rules. The ethical rules only apply to certified paralegals and do not apply to secretaries, law clerks, or other legal assistants. The limited scope of application greatly diminishes the probability that using these codes as the primary method of conflict screening would suffice to screen for client conflicts.”
See the full article for detail about screening requirements and relevant caselaw.

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