I have written in the past about the perhaps “unique” approach that Tennessee has to the question of allowing non-consensual screens to cure conflicts arising from lateral movement of lawyers. That approach can make lateral movement of lawyers both less and more complicated.
What a lot of lawyers and firms in Tennessee do not grasp, though, is that the same structure and approach under our rules can apply to staff when they move from working for one lawyer or law firm to another.
A recent report about a Texas lawsuit where there is now the threat of disqualification after years of litigation because of an undisclosed conflict of interest stemming from a paralegal who moved between law firms has reminded me that I’ve been meaning to elaborate on the risks, complications, and further inequities of Tennessee’s approach when it is applied to people who are not lawyers.
First, the background of the Texas litigation. If you are a Bloomberg subscriber, you could read the article about it here. If you aren’t able to access it, the encapsulated version is as follows:
A paralegal left Firm 1 to join Firm 2 in 2011. When she worked at Firm 1, she had worked on the lawsuit at issue for Firm 1’s client, Plaintiff. In 2011 and before, Firm 2 was not involved in representing anyone in the lawsuit. In 2016, the lawyer who had been representing the Defendant in the lawsuit moved his practice to Firm 2 and brought the Defendant with him as a client. He was not aware that the paralegal who had been working at Firm 2 for the last 5 years and was still there had previously worked for Firm 1 and had been involved in the representation of the Plaintiff.
It is alleged that the conflict came to light in 2023 when the Plaintiff saw the paralegal’s name on a brief. They then moved to disqualify Firm 2. In connection with adjudicating the motion to disqualify, it seems to be admitted that the paralegal did not disclose any confidential information about Plaintiff to anyone at Firm 2. It also has been admitted by Firm 2 that it does not include paralegals in the conflict checks it runs.
Now, there are other aspects of the procedural history of that litigation that make things a bit more complicated. Texas’s rules are sufficiently foreign to me on the actual conflict topic that it is of no worth for me to try to guess what will happen in that case.
It does provide a nice real-world situation though to highlight what Tennessee’s rules say with respect to any roughly similar situation.
A quick refresher as to Tennessee’s overall approach to non-consensual screening to address conflicts from lateral movement.
Tennessee’s RPC 1.10(c) generally allows the creation of a screen to cure imputed disqualification that would otherwise occur when a lawyer moves between firms. It includes certain requirements about making sure there has not already been any flow of information in addition to promptly establishing the screen. Importantly, it also requires that a notice be sent to the former client about what has caused the need for the screen and what actions have been taken.
But Tennessee’s rules treat litigation differently from non-litigation matters such that the entire approach above is not available when: (a) the lawyer moving firms was “substantially involved” in the representation of the former client; (b) that past representation involved litigation where the former client is directly adverse to a current client of the firm that lawyer is now joining; and (c) the litigation is still pending when the lawyer makes the switch.
In those situations, the firm wanting to hire the lawyer can only do so if it is able to get full conflict waivers from both sets (former and current) of clients fighting with each other in the litigation or if it is willing to drop the current client.
The additional wrinkle that gets added to the mix in Tennessee is that Comment [10a] to our RPC 1.10 states: “The requirements set forth in this rule include law clerks, paralegals, secretaries, and other staff employed by a firm, with due regard to their levels of responsibility in the matter.”
Now what “with due regard to their levels of responsibility in the matter” really means is subject to much debate. But that debate is not a widespread one because of the reality of things on the ground in Tennessee.
Based on my experience, the reality in Tennessee is that a small minority of law firms grasp that this comment to RPC 1.10 means that they need to be concerned about the potential for being disqualified as a result of hiring paralegals and legal assistants who are working at other law firms. Within that small minority, a majority of firms will make necessary efforts to try to deal with the issue when the matter involves litigation and, thus, would require a full conflict waiver. Only a minority of the firms within that small minority of overall firms make the effort to provide the notice that is required in order comply fully with the rule when nonconsensual screening can provide a solution to avoid imputation.
The entire situation is one that certainly creates a looming risk for law firms in Tennessee. But it also raises questions about whether, as a matter of public policy, the kinds of barriers to employment of people without law licenses that the rule erects are really justifiable. And, for that matter, whether the rule is working fairly even for law firms given that the real-world impact it is having is that only “some” lawyers and firms are experiencing increased difficulties in hiring staff because they are actually taking pains to seek to comply with the rule at all.