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PROVIDED THAT ALL ETHICAL CONSIDERATIONS AND DISCIPLINARY RULES ARE MET
AND COMPLIED WITH BY THE COMPETING LAW FIRM, IT IS NOT NECESSARILY UNETHICAL
FOR IT, WITHOUT SOLICITATION ON ITS PART, TO EMPLOY A FORMER SECRETARY
OF ANOTHER LAW FIRM WHO VOLUNTARILY SEEKS EMPLOYMENT WITH SUCH COMPETING
LAW FIRM.
AUTHORITIES APPLICABLE
Canon I - A lawyer should assist in maintaining
the integrity and competence of the legal profession.
EC 101 - Maintaining the integrity and improving
the competence of the bar to meet the highest standards is the ethical
responsibility of every lawyer.
DR 4-101(D)- A lawyer shall exercise reasonable
care to prevent his employees, associates, and others whose services are
utilized by him from disclosing or using confidences or secrets of a client
****.
State -vs- Richards -
An attorney should not only avoid impropriety but should avoid the appearance
of impropriety.
Canon 9 - A lawyer should avoid the appearance
of impropriety.
THE QUESTION
Is it proper for a legal secretary, who has terminated her employment
in a law firm to be subsequently employed by a competing law firm?
THE PROBLEM
This involves a community of about 2400 people with three law firms.
A legal secretary leaves Law Firm "A" and wishes to be hired
by Law Firm "B". It would be inconvenient, perhaps impossible,
for her to seek employment elsewhere, because of her responsibilities
at home. The reason for her leaving "A" is not shown nor why
she seeks employment with "B", except that she probably needs
employment. Although only a few adversary matters involve these two law
firms, the bone of contention seems to be that confidential information
acquired by her, when employed at "A" might either directly
or indirectly, intentionally or unintentionally, improperly militate to
the advantage of "B". If "B" is not ethically permitted
to hire her, could she claim actionable discrimination against her unemployment?
Certainly, not being inextricably bound by the Code of Professional Responsibility,
she should be entitled to seek employment wherever she desires, unhampered
by possible unethical considerations applying to the employer. Also, some
secretaries know little or nothing of the confidential matters discussed
with their employers; others may know considerable. However, clients of
"A" are entitled to be protected from release of information
to "B". How can this dilemma be resolved?
DISCUSSION
In the Preliminary Statement to The Code of Professional Responsibility,
it is stated:
"Obviously, the Canons, Ethical Considerations and Disciplinary Rules
cannot apply to non-lawyers; however, they do define the type of ethical
conduct that the public has a right to expect not only of lawyers but
also of their non-professional employees and associates in all matters
pertaining to professional employment. A lawyer should ultimately be responsible
for the conduct of his employees and associates in the course of the professional
representation of the client".
In State ex rel. Nebraska State Bar Ass'n. -vs- Richards, 165 Neb. 80,
93; 84 N.W. (2nd) 136, 145 (1957), our Court stated that "An attorney
should not only avoid impropriety but should avoid the appearance of impropriety".
This, of course, is the essence of Canon 9 of The Code of Professional
Responsibility.
Disciplinary Rule 4-101 (D) states that "A lawyer shall exercise
reasonable care to prevent his employees, associates, and others whose
services are utilized by him from disclosing or using confidences or secrets
of a client, except that a lawyer may reveal the information allowed by
DR-101(C) through an employee."
Canon I states that "A lawyer should assist in maintaining integrity
and competence of the legal profession" and EC 1-1 states in part,
"Maintaining the integrity and improving the competence of the bar
to meet the highest standards is the ethical responsibility of every lawyer".
In other words, EVERY lawyer - and this means the lawyers in both Law
Firm "A" AND in Law Firm "B", must maintain the integrity
of the bar, avoid the appearance of impropriety, and make certain that
all lawyers preserve the confidences of their clients. While this was
formerly the primary responsibility of the lawyers in "A", the
lawyers in "B" are not relieved of that responsibility. The
latter have an obligation also to make certain that this ethical responsibility
of "A" is upheld and not violated. Hence, the lawyers in "B"
are under a duty to instruct the new secretary and impress upon her the
obligation to preserve all confidences, acquired at "A", and
for her to take all reasonable precautions against releasing any such
information to "B", as well as to advise her of the possibility
of actions based on civil liability resulting from improper disclosure
of such confidential information.
The effect of the foregoing would be to place an ethical responsibility
on "B", if and when they undertake to hire the secretary of
a competing law firm. The lawyers in "B" cannot absolve themselves
of this obligation to make certain that nothing whatever will be done
to have the confidences of the clients of another lawyer violated.
As a practical matter, we have young lawyers leaving one law firm and
going to other firms and this transfer of employment does not seem to
pose any particular problem, the only difference being that in their case,
the ethical responsibility must be born by them, as lawyers, whereas,
where lay employees are involved, that obligation and responsibility shift
to the new employer or employers, who then must lean back-ward to make
certain that none of the confidences of the clients of the prior lawyer
have been violated. Hence, subject to the foregoing, it is not necessarily
unethical for a competing law firm to hire a former secretary of another
law firm, where the secretary is not solicited from her previous employment
but voluntarily seeks subsequent employment in a competing law firm.
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