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Mobile Non-Lawyer Employees: Conflict considerations

Phoenix Founders, Inc. v. Marshall, 887 S.W.2d 831 (1994)

TX: Conflict of interest; disqualification

Student Contributor: Amber R. Gilchrest*

Facts: A paralegal working at the law firm of Thompson & Knight quit her job to work for David & Goodman,  where she spends 6/10th of an hour on a collection suit by Phoenix Founders against Ronald and Jane Beneke. The Benekes were represented by David & Goodman while Phoenix Founders was represented by Thompson & Knight. The paralegal later quit David & Goodman and returned to Thompson & Knight while the litigation against the Benekes continued.  The paralegal was not questioned by Thompson & Knight about any potential conflicts of interest and was not screened from the case. Counsel for the Benekes sent a letter demanding that Thompson & Knight withdraw from representing Phoenix Founders; Thompson & Knight refused,  at which point counsel for the Benekes filed a motion to disqualify. After initially overruling the motion, the trial court granted the motion because the confidential information known by an employee is imputed to the employer; in this case the paralegal imputed the confidential information to Thompson & Knight.

Issue: Whether a law firm must be disqualified from representation after employing a non-lawyer formerly employed by opposing counsel even though the law firm takes sufficient precautions to reduce the risk of the disclosure of confidential information?

Ruling: No, a law firm is not required to be disqualified from representation by employing a non-lawyer former employer of opposing counsel if the law firm takes sufficient precautions to reduce the risk of disclosure of confidential information to an acceptable level. In a case of first impression, the court looked to the Coker rule which states that lawyers are disqualified when they represent a client in pending suit that is “substantially related” and adverse to the interests of a former client. NCNB Texas Nat’l Bank v. Coker, 765 S.W.2d 398 (Tex. 1989). Furthermore, the court discussed the Petroleum Wholesale rule which states that any confidential information known by a lawyer is presumed to be shared with other members of the firm because of the nature of the relationship among firm members. Petroleum Wholesale, Inc. v. Marshall, 751 S.W.2d 295 (Tex. App. –Dallas 1988). The court agreed that the Coker rule applies to non-lawyers as well as lawyers,  but refused to extend Petroleum Wholesale  to non-lawyers provided that law firm can prove it took formal screening measures sufficient to protect confidential information. The nature of the involvement, time spent on the case, and the substantiality or the relation between the current and former case are all factors. The case was remanded for determination of whether the law firm took sufficient precautions to screen the paralegal.

Lesson: Lawyers and law firms should always ask every new employee or rehired employee about previous employment or other experience that may create conflicts of interest. Furthermore, law firms should have screening procedures and policies in place to ensure that confidential information is protected and not disclosed.

* Amber R. Gilchrest is in her final year at Texas Tech University School of Law.   She earned her B.A. with a double major in Government and Psychology from the University of Texas at Austin and wants to pursue a career in public service.  


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Posted in: Conflicts of Interest, Texas