2009 Formal Ethics Opinion 3

January 15, 2010

Nonlawyer Employee Contacting Clients of Former Employer

Opinion rules that a lawyer has a professional obligation not to encourage or allow a nonlawyer employee to disclose confidences of a previous employer's clients for purposes of solicitation.

Inquiry:

May a nonlawyer employee of a law firm, who recently changed law firms, write to clients of his/her former employer with whom the nonlawyer had established relationships to inform the clients that the nonlawyer is employed with a new law firm and that the new law firm handles the same type of legal matters?

Opinion:

The Rules of Professional Conduct govern the actions of lawyers, rather than nonlawyers. However, a lawyer having direct supervisory authority over a nonlawyer employee has a duty to make reasonable efforts to ensure that the nonlawyer's conduct is compatible with the professional obligations of the lawyer. Furthermore, the lawyer may be held responsible for conduct of a nonlawyer that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer. See Rule 5.3(c).


The protection of client confidences is one of the most significant responsibilities imposed on a lawyer. See Rule 1.6, 1.9. Comment [1] to Rule 5.3 provides that a lawyer must give nonlawyer employees appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of a client. A client's identity, and the fact that the client had previously retained a lawyer for a particular purpose, is confidential information. Rule 1.6 and Rule 1.9 refer to the duty of confidentiality that a lawyer owes to his own current and former clients. However, the deference that the legal profession gives to a lawyer's duty of confidentiality would mandate that a lawyer has a professional obligation not to encourage or allow a nonlawyer employee to disclose confidences of a previous employer's clients for purposes of solicitation.


No opinion is expressed on the legal question of whether a communication with a client of the nonlawyer's former employer constitutes interference with a contract.


THE NORTH CAROLINA STATE BAR
217 E. Edenton Street • PO Box 25908 • Raleigh, NC 27611-5908 • 919.828.4620
Copyright North Carolina State Bar. All rights reserved.