Paralegal Changing Employment to a Law Firm on Another Side of a Case
In Phoenix Founders, Inc. v. Marshall, 887 S.W.2d 831, 835 (Tex. 1994), the court had occasion to discuss at some length circumstances in which a paralegal has changed employment from a law firm on one side of a case to a law firm on the other side of the case.
In doing so, it recognized the countervailing interests involved and noted with approval the ABA suggestion that any restrictions on the nonlawyer's employment should be held to the minimum standard necessary to protect confidentiality of client information. Id. at 835, citing ABA Committee on Ethics and Professional Responsibility, Informal Op. 1526 (1988).
In the course of its discussion, the court held that a paralegal or legal assistant who changes employment and who has worked on a case is subject to a conclusive presumption that confidences and secrets were imparted. Id. at 834.
This was necessary, it explained, to ensure the protection of the client through which such information was obtained.
However, the court disagreed with the argument that paralegals should be conclusively presumed to have shared that confidential information with their successor employers.
The court held that client confidences might be adequately safeguarded if a firm hiring a paralegal from another firm took "appropriate steps" to ensure that no confidential information was revealed. Id. at 835.
In the absence of consent of the former firm's client, disqualification would always be required when confidential information has, in fact, been revealed, or when screening would be ineffective, or when the nonlawyer would be forced to work on the opposing side of a case.
However, the court held, disqualification ordinarily is not required as long as "the practical effect of formal screening has been achieved." Id., quoting In re complex Asbestos Litigation, 232 Cal. App. 3d 572, 283 Cal. Rptr. 732, 747 (Cal. 1991).