What happens when a paralegal in your office accepts a new job at an opposing law firm?
Great paralegals are worth their weight in gold, and smart attorneys know that.
It’s not surprising, then, that an attorney might try to tempt a hardworking paralegal at an opposing firm to join their own team.
While it is natural for any professional to entertain and accept new career opportunities, having a paralegal move to an opposing firm can create all sorts of ethical dilemmas, not to mention anxiety for the original firm and its clients.
The easiest way to explore the potential ethical dilemma is to think through the whole scenario. In this article, we’ll present a hypothetical situation, then dissect how firms on each side of the situation should handle it.
A typical scenario
Law Firm 1, a boutique litigation firm, represented the Acme company in a very high-stakes, years-long court battle.
Nearly everyone in the firm worked on the Acme case in some way, including the firm’s lead paralegal — we’ll call her Polly.
Polly probably knew the case better than anyone. Law Firm 1’s clients liked her, and everyone trusted her. She had great command of all discovery in the case and was a tremendous asset to the daily work performed by Law Firm 1’s attorneys.
One day, Polly was in the managing partner’s office listening in on a conference call with the lead attorney from Law Firm 2. Law Firm 2 represented Acme’s opponent, Car Corp., in the pending litigation matter.
At some point in the call, the managing partner made a huge mistake. Here’s what he said to opposing counsel:
“Look, Polly knows every document in this case like the back of her hand. If you have a question about whether we’ve withheld anything based on attorney-client privilege, you should call Polly directly and she’ll walk you through our privilege log.”
And then he gave the Law Firm 2 attorney Polly’s direct phone number.
When the attorney from Law Firm 2 began calling Polly for information (all proper inquiries, by the way), he learned what everyone at Law Firm 1 already knew. Polly was a phenomenal paralegal. She always picked up the phone, had the answer to his questions, and had a consistently great attitude.
A few weeks later, Polly handed Law Firm 1 a resignation letter. The attorney from Law Firm 2 had offered her a job and a significant pay raise. She was going to work for the opponent.
In many cases, this scenario would be met with high emotion by the attorneys at Law Firm 1.
I’ve seen it first hand.
That said, this is a common occurrence within law firms. So, let’s take a look at how firms on both sides of the equation can handle these situations ethically and professionally.
What Law Firm 1 needs to do
Notwithstanding the fact that emotions may be running high, there are several steps the original firm needs to take to protect its client’s interests.
Cut off access to case files
Even though Polly was a long-term, valued, and trusted member of the team, once Law Firm 1 was on notice she was going to work for Law Firm 2, they needed to cut her off from access to the Acme v. Car Corp. files — and all client files as other, unknown conflicts may exist.
This doesn’t have to be done with yelling or emotional outbursts. Law Firm 1 management simply needs to explain to Polly that its primary goal is the protection of its clients.
Inform the client
Because this situation has the greatest potential impact on Acme, the attorneys for Law Firm 1 needed to inform Acme representatives of Polly’s new employment immediately.
Law Firm 1 should also tell the client about the other measures it is taking to prevent any improprieties.
Counsel the paralegal on ethical obligations
As with most professionals, Polly is a true professional and has never given Law Firm 1 reason not to trust her.
Nonetheless, Law Firm 1 should counsel Polly verbally and in writing that she has a duty to protect Acme’s confidences and not to act in any way that would harm Acme’s interests or breach the confidential nature of its relationship with Law Firm 1.
A broader statement about keeping the confidences of all of Law Firm 1’s clients is also appropriate here. Since Polly is such a professional, she probably expects this, anyway.
Prepare letter to opposing counsel
Likewise, Law Firm 1 should prepare a letter to opposing counsel informing them of their duties to screen Polly from any work on the Acme vs. Car Corp. matter (or any other conflicting matters).
While Law Firm 2 is undoubtedly aware of this obligation, it is a good reminder that you’ll be keeping an eye out for any improper conduct.
What Law Firm 2 needs to do
In this scenario, the primary onus is on Law Firm 2 to do the right thing. Here are the steps they need to take to remain within ethical boundaries.
Screen the paralegal from conflicting matters
Law Firm 2’s primary duty is to screen the paralegal from any conflicting work involving Acme.
Ultimately, that means the firm must take measures to insure Polly does not reveal any confidences about Acme that she learned while working at Law Firm 1.
Tell everyone at the firm
It’s not enough for Law Firm 2 to tell Polly that she cannot work on the Acme matter.
The firm must also notify all of its personnel that they are not to discuss the Acme matter with Polly, not to give her access to any case files, and not to try to get information from her about her prior work on the case.
Finally, Law Firm 2 should have all of its screening efforts documented in writing.
Predictably, allegations of impropriety may be lodged by Law Firm 1. One of the best ways for Law Firm 2 to defend itself against such allegations is to have documentary evidence illustrating the manner in which it upheld its ethical duties.
Dealing with the loss of a great employee
Watching a valued employee leave is hard. Having someone quit to work for an opponent can be even tougher.
Remember that this decision probably isn’t personal, and that awesome paralegal is just doing what they think is best for their career, family, and future. It’s not a betrayal, even if it feels a little like one right now.
There is never a better time for attorneys to act like professionals and do what is ultimately best for the client and their employees.
Take this chance to build your reputation as a firm that can handle anything that comes your way.
Later, if you think it’s appropriate, you can reflect on changes you might want to make to keep your other star employees engaged and happy.
Updating your policies or pay might not win back the great person or people that have already left, but you can make changes that help you retain the top staff you still have. Don’t forget about those people! They’re even more valuable now.