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Ethics Opinion 352 Stresses Risks Associated with Temporary Attorneys

By Robert C. Rodriguez, Litigation News Associate Editor – April 29, 2010

In this tough economic climate, many law firms have had to lay off newer associates and turn to the use of temporary, contract attorneys to perform labor intensive tasks, such as document review.

This trend carries with it challenges for the temporary worker who has to move between different firms and survive a hiring firm’s conflict review. It also poses ethical risks for the hiring firm who may have the temporary lawyer’s conflicts imputed to it.

A recent District of Columbia Bar ethics opinion offers helpful guidelines to law firms as they navigate this potentially dangerous minefield.

Ethical Duties for Temporary Attorneys and Firms Hiring Them
Ethics Opinion 352 concludes that both a hiring firm and temporary attorney must take appropriate steps to protect client confidential information by instituting safeguards to prevent disclosure or misuse of information in the custody of the firm, and by avoiding disclosure or use of information the temporary attorney learned during former employment.

Whether an individual temporary attorney’s conflicts are imputed to the hiring firm, under D.C. Ethics Rule 1.10, depends on the nature and extent of the lawyer’s relationship with the firm as well as the lawyer’s access to the firm’s confidential client information.

Factors considered include the scope of the attorney’s relationship with the hiring firm, the length of the attorney’s service with the firm, and the potential exposure to the firm’s confidential client information, the opinion says. The analysis is not affected by whether the attorney is paid by the firm or by a contracting agency, the opinion notes.

Where a temporary contract lawyer does not have a past or ongoing association with a law firm, but is hired to work on one project of limited duration, and the attorney’s access to confidential information is confined to the specific project, the hiring firm must conduct a conflict check only for the matters on which the temporary attorney will be working, the opinion states.

In contrast, where a contract attorney works on multiple firm projects, is listed on the firm’s website, and has access to the firm’s email system and electronic documents, the attorney would be considered “associated” with the hiring firm and the attorney’s conflicts would be imputed to that firm, under D.C. Ethics Rule 1.10, the opinion notes.

A temporary attorney who works intermittently with the same firm on a number of small projects or on one long-term project would not be considered “associated with” the hiring firm if the firm does not have, and does not create, an impression the contract lawyer has a continuing relationship with the firm, and the firm puts in place safeguards to ensure the contract attorney does not have access to the firm’s client confidential information except for the specific matter on which the contract attorney is working, the opinion explains.

Ethics rules implicated by the issue of contract attorneys include D.C. Ethics Rules 1.6 (confidentiality of information), 1.9 (duties to former clients), 1.10 (imputed disqualification), and 4.4 (respect for the rights of third parties), the opinion notes.

“This D.C. opinion reflects the law’s need to balance a lawyer’s right to earn a living with a firm’s obligation to keep client confidences confidential,” notes Andrew S. Pollis, Cleveland, cochair of the ABA Section of Litigation’s Ethics and Professionalism Committee.

Tips to Avoid the Ethical Traps
“Hiring contract attorneys definitely does present a trap if one is not careful,” notes Byung J. Pak, Atlanta, cochair of the Legal Ethics Subcommittee of the Section’s Corporate Counsel Committee.

“Ideally, the hiring firm should screen the temporary attorney’s prior engagements (just like when you are hiring a partner-track associate) and determine whether his or her previous engagements may create a potential for conflict with the firm’s clients,” Pak advises.

“The opinion recognizes the practical difficulty in enforcing traditional conflict imputation principles to temporary lawyers, who may work at several different firms in the same month,” says Thomas G. Wilkinson, Philadelphia, chair of the Conflicts of Interest Subcommittee of the Section’s Ethics and Professionalism Committee.

Whether or not there is an “imputed” conflict, the D.C. ethics opinion makes clear that it is crucial to segregate a contract attorney from firm matters unrelated to the specific work the lawyer is hired to do. This can be done by limiting the contract attorney’s work space physically to a location off-site, or in a specific conference room. The attorney’s electronic access to firm information and records must also be limited.

“The best practice would be to have the temporary attorney not work off the firm’s main server, and not to discuss other clients’ matters with the temporary attorney. At the very least, other client’s files should be password protected,” advises Pak.

Other prophylactic measures suggested in the ethics opinion include clearly marking the area where the contract attorney will work so that office staff are alerted to his or her presence, and securing file cabinets and storage areas containing client information.

“Off-site locations are ideal, but for costs reasons, this option may not be possible for all firms,” opines Pak. However, he advises that, “at the very least, the temporary lawyer’s work space should be segregated from the rest of the firm—in an empty back office, for example.”

“But if you are that afraid of the attorney stealing client information, why even hire the attorney in the first place?” asks Joshua Camson, Pittsburgh, cochair of the Young Lawyers Subcommittee of the Section’s Ethics and Professionalism Committee.

Few states have tackled the question of imputation of conflicts in the temporary lawyer context, and many jurisdictions may not yet be ready to adopt the D.C. Bar’s functional approach, Wilkinson notes.

Keywords: Litigation, ethics, D.C. Ethics Rule 1.10, contract attorneys, confidentiality

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