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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-1702" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2015/05/ethical-screen-201x300.jpg" alt="ethical screen" width="201" height="300">Small may be beautiful, but when it comes to law firms, small can signal disqualification troubles that a bigger firm might sometimes be able to avoid, according to the reasoning of a recent <a href="http://filehost.thompsonhine.com/uploads/nmd-uscourts-gov-doc1-12116968364_0932.pdf">opinion</a>.
We&rsquo;ve posted <a href="https://www.thelawforlawyerstoday.com/2014/07/screening-paralegals-can-avoid-conflict-problem/">here</a>&nbsp;before about screening non-lawyer personnel in order to avoid imputed disqualification when a secretary or paralegal arrives at your firm with a conflict.
In the recent case,&nbsp;Ullman v. Denco,&nbsp;a &nbsp;New Mexico federal court magistrate judge granted disqualification,&nbsp;booting defendants&rsquo; counsel from eleven consolidated employment cases after the firm hired a paralegal from the firm representing the plaintiffs.
Side-switching paralegal
The paralegal had worked extensively on the cases; she had interviewed most of the clients, and had &nbsp;detailed information about plaintiffs&rsquo; legal strategies and bottom line settlement numbers.
Under those circumstances, the side-switching paralegal clearly could not herself participate in the consolidated case. &nbsp;The question was whether her personal disqualification would be imputed to the entire six-lawyer defense firm &mdash; especially considering the fact that the defense firm had quickly put up an elaborate ethical screen.
Ethical screen terms
The screen isolated the paralegal&rsquo;s office from the locked office where the files on the cases were kept; mail relating to the case was separately routed; electronic documentation was password protected; an office-wide &ldquo;admonition&rdquo; was issued against sharing confidential information and even speaking openly about the cases within the office.
The magistrate judge held that the paralegal&rsquo;s disqualifying conflict would not be imputed to the rest of the firm. &nbsp;<a href="http://public.nmcompcomm.us/nmpublic/gateway.dll/?f=templates&amp;fn=default.htm">Comment [4]</a> to New Mexico&rsquo;s version of the conflict imputation rule, <a href="http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_10_imputation_of_conflicts_of_interest_general_rule.html">Model Rule 1.10</a>, says that the disqualification rules do not &ldquo;prohibit representation by others in the law firm where the person prohibited from involvement in a matter is a non-lawyer, such as a paralegal or legal secretary.&rdquo;
However, the defense firm&rsquo;s continued representation of its employer clients was doomed anyway, because the magistrate judge held that even the comprehensive screen the firm proposed &ldquo;would not be effective&rdquo; &nbsp;&mdash; in part because the firm was just too small.
Small firm &mdash; harder to make a screen work
The court recognized that screening, &ldquo;if effective to protect any client confidences that the non-lawyer gained from prior employment, can avoid the harsh remedy of disqualification.&rdquo;
But here, a factor that &ldquo;weigh[e]d heavily&rdquo; against the screen&rsquo;s effectiveness was that the defense firm was &ldquo;relatively small.&rdquo; &nbsp;Three of the lawyers, or half the firm&rsquo;s active attorney roster, were involved in the consolidated case; all lawyers and support staff worked in the same building; and the firm&rsquo;s staffing needs were so pressing that they could not delay the paralegal&rsquo;s start date even three weeks, until after a scheduled mediation of the case. &nbsp;The firm&rsquo;s small size made it unlikely that the confidential information could actually be sealed off.
&nbsp;Other factors mandating DQ
In addition to the defense firm&rsquo;s small size, the magistrate judge noted that the information the paralegal had was extremely sensitive and relevant, and that she had &nbsp;been very heavily involved on the other side of the case. &nbsp;Finally, there was a short time lag between the defense firm&rsquo;s first contact with the paralegal and implementation of the screen. &nbsp;The gap was only two days &mdash; but combined with the other factors, it helped scuttle the defense firm&rsquo;s representation.
Even a good screen...&nbsp;
The magistrate judge did not fault the firm&rsquo;s screening procedures &mdash; in fact, he said they met and even exceeded measures endorsed in other disqualification cases. &nbsp;But combined with the firm&rsquo;s small size and the other factors, even a good screen did not suffice.
And for firms large and small, this case is also a reminder about the importance of conflict checking everyone who joins the firm &mdash; even non-lawyers.

core/freeform

Ethics

Legal Ethics, Professional Responsibility and the Business of Law

“Comprehensive” ethical screen fails to avoid disqualification from side-switching paralegal