Can a lawyer hire a part-time secretary who keeps working at an adversary law firm?

Plain-English summary

The committee was asked whether a lawyer may employ a secretary part-time if she keeps her existing job at another law office with which the lawyer has periodic adversarial contact. It began with the duty of inquiry: before hiring a part-time secretary, a lawyer must make reasonable inquiry into her character, experience, and present employment, among other relevant factors, to ensure that client confidences and secrets will be preserved.

The committee anchored that duty in DR 4-101(D), which requires a lawyer to exercise reasonable care to prevent his employees and others whose services he uses from disclosing or using a client's confidences or secrets, and in EC 4-2, which recognizes that the normal operation of a law office exposes confidential information to non-lawyer employees, particularly secretaries and those with access to files. A lawyer who knows or has reason to suspect that confidential information is leaking from his office must correct the situation immediately.

Applying those principles, the committee concluded that it was improper for a lawyer to employ a part-time secretary if he knew she would continue working at another law office with which he had periodic adversarial contact. To allow a situation where the leaking of confidential information was foreseeable would create the appearance of impropriety in contravention of Canon 9 (citing ABA Inf. 692).

Currency note

This opinion was issued in 1975, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009; the confidentiality duty it analyzes is now in Rule 1.6, and a lawyer's responsibility for the conduct of nonlawyer assistants is in Rule 5.3. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer share a secretary with a firm he litigates against?

A: Under this opinion, no. If the secretary keeps working at an office with which the lawyer has periodic adversarial contact, the foreseeable leak of confidences makes the arrangement improper.

Q: What must a lawyer check before hiring support staff?

A: Per the opinion, a lawyer must make reasonable inquiry into the prospective secretary's character, experience, and present employment to ensure that client confidences will be preserved.

Q: What if the lawyer later suspects a leak?

A: The committee held that a lawyer who knows or has reason to suspect confidential information is leaking from his office must correct the situation immediately.

Background and rules framework

The opinion applied DR 4-101(D) (reasonable care to prevent employees from disclosing confidences), EC 4-2 (confidentiality exposure in normal office operation), and Canon 9 (avoiding the appearance of impropriety). The current New York analogues are Rule 1.6 (confidentiality of information) and Rule 5.3 (responsibilities regarding nonlawyer assistance).

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• MR 5.3 (responsibilities regarding nonlawyer assistance)
• NY Canon 9; EC 4-2; DR 4-101(D)

Other opinions cited:

• ABA Inf. 692: foreseeable disclosure of confidences by shared office personnel

See also

• NY State Bar Op. 422: Hiring a secretary away from an adversary firm
• NY State Bar Op. 393: Permissible activities of a law clerk
• NY State Bar Op. 421: Reviewing another lawyer's work for an accountant

Source

• Landing page: https://nysba.org/opinion-386/