Informal Opinion Number: 2017-02

Adoption Date: 2017

Rules: 4-5.3; 4-1.4
Law Firms and Associations
Responsibilities Regarding Nonlawyer Assistants
Communication
Subject: Communication with Clients; Confidentiality; Supervision of Nonlawyers
Summary: lawyer's responsibilities when a nonlawyer assistant breaches confidentiality

Question: What are Attorney’s ethical duties upon learning that a nonlawyer assistant who was under Attorney’s supervision disclosed client confidences to third parties and possibly to opposing parties, and how can Attorney prevent future breaches of confidentiality?
Answer: Attorney’s ethical responsibilities regarding nonlawyer assistants are governed by Rule 4-5.3. Attorney is obligated to make reasonable efforts to ensure the law firm has in effect measures giving reasonable assurance that all conduct of Attorney’s nonlawyer assistants is compatible with Attorney’s professional obligations. Rule 4-5.3(a). Attorney must make reasonable efforts to ensure an assistant’s actual conduct is compatible with Attorney’s professional obligations. See also Comment [1] to Rule 4-5.3. Attorney is responsible for the nonlawyer assistant’s misconduct if Attorney ordered or ratified the conduct or if Attorney knew of the conduct at a time when consequences could have been avoided or mitigated but failed to take reasonable remedial action. Mitigating actions required by the rule depend on the nature and recipients of the disclosures and the possible results. Attorney may be required to contact third parties if doing so would work to avoid or mitigate the breach’s consequences. Attorney also may have duties governed by substantive law about which this office cannot give an opinion. Pursuant to Rule 4-1.4, Attorney must disclose the confidentiality breach to all affected clients and explain the matter to the extent reasonably necessary to permit the client(s) to make informed decisions about the representation(s).

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

To request an Informal Opinion, please visit: https://mo-legal-ethics.org/for lawyers/requesting-an-informal-advisory-opinion/.

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