Ethics Question of the Month November 2022

Let’s Not Give Them Something to Talk About

The Question

What happens when a paralegal violates the rules?

The Situation

Peyton is a solo practitioner who is becoming a go-to lawyer in divorce cases. Because of a recent increase in new clients, Peyton hires Jordan as a legal assistant to help manage the caseload. Jordan has years of experience but no certification. Peyton provides a short training session to new hires by providing them with a copy of the Texas Disciplinary Rules of Professional Conduct and discussing the most important and common ethical obligations encountered by attorneys. Peyton then has them acknowledge in writing that they have read the Rules and will abide by them, which Jordan does.

Soon after Jordan is hired, a prominent local citizen comes to see Peyton to discuss filing for divorce from her equally prominent spouse. That this high-profile client is seeking a divorce is quite surprising, and Peyton knows that the proceedings will attract a lot of public attention. Peyton brings Jordan to the initial meeting because both will be spending time on this matter, particularly in dealing with the media. After the meeting, Peyton reminds Jordan of the firm’s confidentiality obligations under Rule 1.05(b).

That evening, Jordan has dinner with a friend. When the friend asks how the new job is going, Jordan excitedly mentions the new high-profile case and how much fun it will be to work on. When the friend asks who the celebrity is, Jordan blurts out the name before realizing that the identity of the client should have been kept confidential. The friend is good at keeping secrets, so Jordan requests that this explosive information be kept confidential.

The next morning, Jordan tells Peyton and about the conversation and that the friend agreed to tell no one about the case. Peyton tells Jordan that they will need to send a certified letter to the friend with a stern warning not to tell anyone about the conversation with Jordan. Upon receiving the letter, the friend immediately calls the office and assures Peyton that the information will be kept confidential.

Five days later, Peyton files the case and the media begin reporting the news shortly thereafter.

The Question

Who is potentially subject to disciplinary action for the Rules violation?

The Correct Answer is D Of 123 Responses, 17% are correct.

  1. A 47
  2. B 9
  3. C 45
  4. D 22

The Explanation

Jordan clearly violated Rule 1.05 of the Texas Disciplinary Rules of Professional Conduct TDRPC. It reads in part:

(a) Confidential information includes both privileged information and unprivileged client information. Privileged information refers to the information of a client protected by the lawyer-client privilege of Rule 5.03 of the Texas Rules of Evidence or of Rule 5.03 of the Texas Rules of Criminal Evidence or by the principles of attorney-client privilege governed by Rule 5.01 of the Federal Rules of Evidence for United States Courts and Magistrates. Unprivileged client information means all information relating to a client or furnished by the client, other than privileged information, acquired by the lawyer during the course of or by reason of the representation of the client.

(b) Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e), and (f), a lawyer shall not knowingly:

(1) Reveal confidential information of a client or a former client to:

(i) a person that the client has instructed is not to receive the information; or

(ii) anyone else, other than the client, the client's representatives, or the members, associates, or employees of the lawyer's law firm.

(2) Use confidential information of a client to the disadvantage of the client unless the client consents after consultations.

(3) Use confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known.

(4) Use privileged information of a client for the advantage of the lawyer or of a third person, unless the client consents after consultation.

So can Peyton be liable for Jordan’s rules violation? Rule 5.03 of the Texas Disciplinary Rules of Professional Conduct (TDRPC) addresses the responsibilities of a lawyer for violations of the Rules by non-lawyer assistants. It reads:

With respect to a non-lawyer employed or retained by or associated with a lawyer:

(a) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and

(b) a lawyer shall be subject to discipline for the conduct of such a person that would be a violation of these rules if engaged in by a lawyer if:

(1) the lawyer orders, encourages, or permits the conduct involved; or

(2) the lawyer:

(i) is a partner in the law firm in which the person is employed, retained by, or associated with; or is the general counsel of a government agency's legal department in which the person is employed, retained by or associated with; or has direct supervisory authority over such person; and

(ii) with knowledge of such misconduct by the nonlawyer knowingly fails to take reasonable remedial action to avoid or mitigate the consequences of that person's misconduct

An attorney can be disciplined for a non-lawyer assistant’s conduct if: (1) the lawyer “orders, encourages, or permits” such conduct, or (2) knows about it and “fails to take reasonable remedial action to avoid or mitigate the consequences” of that misconduct.” Here, Peyton took immediate steps to avoid any possible consequences by promptly contacting Jordan’s friend and ordering the friend to keep the sensitive client information confidential in compliance with Rule 5.03(B)(2)(ii).

In addition, Rule 5.03(a) requires the lawyer to “to make reasonable efforts to ensure that the [non-lawyer assistant’s] conduct is compatible with the professional obligations of the lawyer.” Here, Peyton not only provided Jordan ethics training along with a copy of the Rules – and was assured that Jordan had read them – but specifically warned Jordan of the confidentiality obligation with respect to the new case. That is reasonable under these circumstances.

Finally, can Jordan be disciplined for this violation of the TDRPC? No, because only licensed attorneys are subject to the TDRPC. The correct answer is D.

Bluebook Citation

Let’s Not Give Them Something to Talk About: Ethics Question of the Month - November 2022, Texas Center for Legal Ethics (2022), from https://legalethicstexas.com/ethics-question-of-the-month/ethics-question-of-the-month-november-2022/ (last visited Dec 02, 2022)