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 dash–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 dash–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 dash–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 dash–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).

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