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Disqualified Law Firm Failed to Erect Ethical Wall for Legal Assistant

By Lynne DeVenny

The Texas Supreme Court has ordered that defense counsel for a hospital in a medical malpractice case be disqualified, because the firm did not take reasonable steps to ensure that a legal assistant formerly employed by the plaintiff's counsel did not have access to the case.

Central to the issue was whether a legal assistant at Magallanes & Hinojosa had worked on the Leal case while employed by opposing counsel, Brin & Brin, P.C.; and whether Magallanes & Hinojosa took reasonable measures to ensure that the assistant would not work on the case.

Despite signing a confidentiality agreement with Brin & Brin before she left, and being reminded by her new employer not to work on cases she had worked on with her former employer, the Court found that the legal assistant handled correspondence, took calls and copied sensitive documents in the Leal case.

This case is a reminder to both working paralegals and students that an ethical wall, also called a Chinese Wall, must be erected in regard to any situation where a conflict of interest may arise due to a paralegal leaving one law firm for another. See Guideline 7 of the ABA Model Guidelines for the Utilization of Paralegal Services and ABA Informal Opinion 1526 (1988).

The Court clearly found the defense firm remiss in its obligation to avoid conflicts of interest raised by hiring this legal assistant, but a commenter at the news article bluntly asked, "If the assistant knew she was not to work on the case, why didn't she remind the attorneys when asked to run copies or file pleadings?"

I'd like to ask the legal assistant that question myself. The article does not address her formal training, education or experience, nor does it discuss the extent of ongoing ethics training or continuing legal education that she had access to. But the fact that a law firm has been disqualified from representation in a case that has been in litigation for years demonstrates the critical need for ongoing ethics training - for both lawyers and their staff.

Additional national resources that every paralegal should review and save as favorites in their browsers, in addition to state resources:

• Model Standards and Guidelines for Utilization of Paralegals (NALA)
• Model Code of Ethics and Professional Responsibility And Guidelines For Enforcement (NFPA)
• NALS Code of Ethics & Professional Responsibility

Source: The Brownsville Herald

Full post as published by Practical Paralegalism on August 29, 2010 (boomark / email).