Formal opinion 2024-6: conflicts and hiring of summer law clerks, law student interns and law school graduates

SUMMARY

The Professional Ethics Committee issued Formal Opinion 2024-6, addressing whether conflicts of interest arise when law firms hire unadmitted law students and law school graduates, and whether such conflicts are imputed to the firm. The opinion concludes that unadmitted law students and law school graduates are not considered lawyers and therefore cannot create conflicts of interest under Rule 1.10 when hired by a law firm or legal assistance organization. However, when hiring these individuals, firms should take reasonable precautions to prevent the improper use or disclosure of confidential information. This may include implementing screening measures to separate new hires from matters involving relevant information they may have obtained previously. The opinion also notes that clinical law students who are acting as lawyers while participating in law school clinics present unique considerations. In such cases, law firms and clinics should assess whether a screening mechanism would sufficiently protect the confidentiality of the clinical client or if additional measures are warranted.

REPORT

FORMAL OPINION 2024-6: CONFLICTS AND HIRING OF SUMMER LAW CLERKS, LAW STUDENT INTERNS AND LAW SCHOOL GRADUATES

TOPIC: Unadmitted Law Student and Law Graduate Conflict Checks

DIGEST: Unadmitted law students and law graduates are not lawyers and cannot create potentially disabling conflicts under Rule 1.10 when hired by a law firm or legal assistance organization. When hiring these individuals, however, firms should take reasonable steps to avoid the improper use or disclosure of confidential information, including potentially screening new hires from matters for which they have such relevant information. Clinical students who are functioning as a lawyer while participating in a law school clinic present special considerations, and firms and clinics should consider whether a screen would effectively protect a clinical client’s confidential information or additional action is appropriate.

RULES: 1.0(h), 1.0(t), 1.6, 1.7, 1.9, 1.10, 5.3

QUESTION: Can summer law clerks, law student interns and law school graduates bring conflicts to a law firm that are imputed to the law firm under New York Rule of Professional Conduct 1.10?

Introduction

A law firm or legal assistance organization[1] that hires a law student, summer law clerk, legal intern or unadmitted law school graduate,[2] or a lawyer who held those positions prior to being admitted to any bar, must be mindful of how their new hires’ prior employment may impact the firm’s work. Firms use varying practices when hiring unadmitted summer law clerks, interns, and law school graduates. For conflict checking purposes, some firms treat these new hires like incoming lawyers, including for the purposes of imputed conflicts. Others take the position that unadmitted summer law clerks, interns, or law school graduates are not lawyers, and no conflicts can be imputed to the firm. Existing ethics guidance provides that law firms should focus on addressing confidentiality concerns when hiring nonlawyers, such as paralegals. This opinion clarifies that summer law clerks, interns, and unadmitted law school graduates are categories of nonlawyers and do not bring with them potentially disabling conflicts when hired. These nonlawyers, however, may have been exposed to confidential information that requires firms to take reasonable steps to avoid the improper use or disclosure of that information. Clinical students present unique issues that bridge these two analyses, and this opinion thus separately addresses considerations[3] relevant to students who are participating or have participated in law school clinics.

I. Do conflicts arise from hiring pre-admission law students or law school graduates for work at law firms, legal assistance organizations, nonprofits, and corporations?

A. Imputed conflicts of interest created by the hiring of a new lawyer

Rule 1.10 governs imputation of conflicts of interest. Rule 1.10(a) states: “While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7, 1.8 or 1.9, except as otherwise provided therein.”

Applying Rule 1.7(a), for example, imputed conflicts may arise when two or more lawyers in a firm are each representing clients who have concurrent conflicts with one another, e.g., because the clients have “differing interests” or when the “lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, business, property or other personal interests.”

The more complicated situation for the purposes addressed in this opinion is an imputed conflict created when a newly hired lawyer brings a conflict to the firm. In addition to Rule 1.10(a)’s incorporation of Rule 1.9,[4] Rule 1.10(c) prohibits a firm from “knowingly represent[ing] a client in a matter that is the same as or substantially related to a matter in which the newly associated lawyer, or a firm with which that lawyer was associated, formerly represented a client whose interests are materially adverse to the prospective or current client. . . .” This prohibition, however, does not apply if the newly hired lawyer did not acquire confidential information in the prior representation that is material to the current representation in the lawyer’s new firm.[5]

At present, New York’s version of Rule 1.10, unlike that of many jurisdictions, does not contain a provision permitting screening of the newly hired lawyer to cure an imputed conflict.[6] Under New York’s version of the rule, an imputed conflict may only be cured when the conflict has been “waived by the affected client or former client under the conditions stated in Rule 1.7”[7], i.e., where the current or former client has given informed consent confirmed in writing.

Comment 8 to Rule 1.0 limits the use of screening to cure imputed conflicts to situations governed by Rules 1.11, 1.12, and 1.18. The Committee on Professional Ethics of the New York State Bar Association addressed this limitation on the use of screens to cure imputed conflicts in Formal Opinion 1186 (2020):

Screening as a Cure for Conflicts 

. . .

8.         Comment [8] to Rule 1.0 makes clear that screening generally applies only when the screening of a personally disqualified lawyer is permitted to remove imputation of a conflict of interest under Rule 1.11 (former and current government officers and employees), Rule 1.12 (former judges, arbitrators, mediators or other third-party neutrals), or Rule 1.18 (lawyers who meet with prospective clients who do not become actual clients). Implicit in Comment [8] is that the Rules do not approve screening when a current conflict exists between clients under Rule 1.7(a), at least absent informed client consent confirmed in writing under Rule 1.7(b).

9.         Our opinions support the conclusion that, with the exceptions noted above, a screen may not be used to eliminate conflicts under the conflict’s rules. . . .[8]

Although the New York version of Rule 1.10 does not permit screening to cure imputed lateral hire conflicts, some New York courts have allowed firms to avoid disqualification through screens.[9] Amendments that would “codify these federal court decisions in New York’s Rule 1.10(a)” are currently under consideration.[10] However, the amendments, if adopted, would not change the analysis in this opinion, which focuses narrowly on whether nonlawyer law students and law graduates are considered lawyers for purposes of imputed conflicts under Rule 1.10.

B. Inapplicability of imputed conflict rules to nonlawyers

The language of Rule 1.10 is limited to “lawyers,” and the Comments to Rule 1.10 make clear that the Rule does not apply to nonlawyers. Comment 4 states: “The rule in paragraph (a) also does not prohibit representation by others in the law firm where the person prohibited from involvement in a matter is a nonlawyer, such as a paralegal or legal secretary.” Comment 4 adds this qualification: “Such persons, however, ordinarily must be screened from any personal participation in the matter to avoid communication to others in the firm of confidential information that both the nonlawyers and the firm have a legal duty to protect.” Thus, the duty of confidentiality is fully applicable to nonlawyers, and screening of a nonlawyer who has acquired confidential information in prior work on behalf of a client may be used to ensure that the client’s confidential information is protected.[11]

Unlike other versions of Rule 1.10 and its Comments, the New York version is silent with respect to law students.[12] However, Rule 1.10 is explicitly limited to “lawyers [who] are associated in a firm” (emphasis added), so law students and law school graduates who have not been admitted to any bar[13] fall outside this definition. The Committee on Professional Ethics of the New York State Bar Association reached this conclusion in Formal Opinion 905 (2012). A law firm’s newly hired lawyer had, while a law student, worked as a paralegal for another firm and had continued as a paralegal after graduation. The opinion concluded that law students are not “associated” with law firms and do not “represent” clients. Therefore, the strict imputation and disqualification provisions of Rule 1.10 do not apply to an individual who previously worked for a firm as a law student.[14]

This opinion confirms that unadmitted summer law clerks, law student interns, and law school graduates are not “lawyers” under Rule 1.10. They may perform substantive work on legal matters, but similar to paralegals and other nonlawyers may only do so under the supervision of practicing attorneys and cannot hold themselves out as lawyers.[15]

C. Check for imputed conflicts not required

The Rules are clear about what is required when a firm makes a lateral hire of an attorney. When hiring lateral attorneys from other law firms, the hiring firm should conduct a conflict check to determine “which clients the lateral lawyer personally represented while at his or her former firm.”[16] If the lawyer participated in a matter such that she acquired confidential information about a former client, the hiring firm may not, if materially adverse, represent another client in the same or a substantially related matter absent informed consent from the lateral attorney’s former client.[17] But is the same check and informed consent required when hiring law student summer law clerks or interns or law graduates?

Ordinarily, the answer is no. Because unadmitted summer law clerks, legal interns and law school graduates are not lawyers, work undertaken prior to becoming a lawyer cannot be imputed to the firm under Rule 1.10. A firm need not assess whether informed consent to continue or commence representation is required if that representation would have violated Rule 1.9 were the work performed by a lawyer.

This analysis does not change when a nonlawyer gains admission to the bar. It is the nature of the individual’s role at the time she works on a legal matter that dictates the applicability of the imputed conflicts rule. The question to ask is: at that time, was the individual “associated” with a law firm or “represent[ing]” a client?[18] If the answer is no, then no conflicts are imputed under Rule 1.10. Just as work done by a nonlawyer staff member, such as a secretary or paralegal, does not create an imputed conflict if that staff member later becomes a lawyer and obtains new employment,[19] work done by an unadmitted summer law clerk, intern or law school graduate does not retroactively become subject to the imputed conflicts rule once that person is admitted to the bar. Of course, work done after admission, including continued work on matters with which the newly admitted person was engaged previously, would involve representation of a client by a lawyer associated with the firm and would be subject to Rule 1.10 if the now-admitted attorney seeks new employment.

II. What steps should firms take to protect confidential information obtained by unadmitted law students or law school graduates in their prior employment?

Even if the firm need not assess whether informed consent to a conflict between clients is required, confidential information must still be protected. Relying on Rules 1.6, concerning the duty of confidentiality, and Rules 5.1 and 5.3, concerning the duty of supervising subordinate lawyers and nonlawyer employees, New York State Opinion 905 reasoned that the firm was required to make “reasonable efforts” to ensure that the newly hired lawyer did not reveal any confidential information learned while employed as a paralegal at his previous firm. The opinion concluded that such “reasonable efforts” were contextual and depended on the role the newly hired lawyer had played in the matter at issue. If the newly hired lawyer “played more than a ministerial role in the matter,” it would be advisable for the firm to “perform a conflicts check reasonable under the circumstances”[20] and to screen the lawyer “from any personal participation in the matter to avoid communication to others in the firm of confidential information that both the nonlawyers and the firm have a legal duty to protect.”[21]

So, firms should take reasonable steps to ensure that confidential information obtained from prior employment is not revealed or used by a new hire, regardless of whether that person is an admitted lawyer or an unadmitted law student, law school graduate or other member of the firm’s staff.[22] When hiring unadmitted summer law clerks, law student interns and law school graduates, these steps will depend on the circumstances,[23] and may include inquiring first into the nature of the new hire’s prior employment and the depth of the new hire’s involvement in confidential matters; determining whether the individual actually obtained confidential information from prior employment with respect to any particular matters; and screening the new hire from matters handled by the law firm if the new hire obtained confidential information relevant to the matter.[24]

Admitted attorneys who previously held summer law clerk positions, public interest or private practice internships or other employment prior to being admitted to the bar likewise may need to be screened because of information they acquired during employment while in law school.[25] Screens should be implemented “as soon as practicable after [the firm] knows or reasonably should know that there is need for screening”,[26] which in the case of summer law clerk, intern or law school graduate hiring is either after the firm conducts a review of prior employment in line with the confidentiality-protecting principles described above or, if a reasonable review was undertaken and the need for the screen was nevertheless not identified, as soon as the firm learns the summer law clerk or intern had in fact obtained confidential information from a prior employer that is relevant to a matter being handled by the firm.[27]

It should be noted that New York’s version of Rule 1.6 concerning confidentiality, unlike some other versions, does not contain an exception expressly authorizing disclosure “to detect and resolve conflicts of interest arising from the lawyer’s change of employment.”[28] But since conflicts arising from an individual’s employment while unadmitted to the bar are not imputed to the firm under Rule 1.10, in situations in which information necessary for conflicts resolution may not be disclosed, firms are, at least, not placed in the untenable position of hiring law student interns or law school graduates, not receiving information about prior work due to confidentiality restrictions, and then later learning of a conflict that is imputed to the firm and only resolvable via informed consent. The information applicable to identifying the need for and implementing a confidentiality screen is also usually less substantial than the information required to determine whether a conflict exists. Depending on the nature of the matter, it may, for example, only be necessary to identify the name of the client or adverse party or the general nature of the work to determine that a screen is prudent. If, for example, in the clinical context identified above, even that information may not be revealed without violating Rule 1.6, the firm may act reasonably by requiring unadmitted interns or law school graduates to notify the firm if, while employed, they learn of any matters implicating prior work. At that point, the firm may determine to implement a screen.

III. Special rules applicable to law students who participate in law school clinics or externships, operating under a court’s Student Practice Order

A potentially more complex ethical situation arises when a firm hires a law student who is working or has worked in a law school clinic or externship[29] that operates under a court’s Student Practice Order. Section 478 of the New York Judiciary Law generally limits the “practice of law” to “individuals who have been duly and regularly licensed and admitted to practice law in the courts of record of this state, and without having taken the constitutional oath.” However, one important exception is law students who participate in a clinic or externship “acting under a program approved by the appellate division of the supreme court . . . specifying the extent to which such students and persons may engage in activities otherwise prohibited by [Section 478].”[30] Such students typically take on significant representational responsibility under the supervision of law school faculty members. Thus, their interactions and work with clients often go beyond those of a typical summer law clerk or intern in a law firm—or even a law school graduate who is not yet admitted to the bar.

This Committee addressed this situation in New York City Opinion 2009-3. The Committee began by noting that “the provisions of the Code[31] have been found applicable ‘to law students functioning as lawyers in clinical education programs.’ . . . Moreover, ‘unless the Code otherwise provides, the rules governing law firms are equally applicable to [a] law school’s legal clinic.’ ”[32]

The Committee summarized the interests that needed to be balanced in determining how to apply the ethical rules to students who had participated in law school clinics:

Law students, of course, are not members of the bar. Yet, when working in a legal clinic, a law student typically “will be functioning as a lawyer, [and] the clients involved justifiably will regard the student as a lawyer.”. . . Mindful of this dual status, we must also consider the salutary objective of encouraging practical legal training without unduly limiting a student’s prospects for employment. Balancing the two, we believe that the conflicts rules can and should be applied to protect client confidences without unduly hampering students’ mobility following graduation.[33]

The Committee noted that students have varying levels of responsibility in law school clinics. At one end of the spectrum are situations in which “the services rendered by law students [have been] substantial and ongoing when, for example, the students have primary responsibility for representing pro bono clients over an extended period of time.” In those situations, the Committee concluded that the law firm would need to “use an ethical screen to rebut any presumption (and eliminate any risk) that the new hire would share any confidences and secrets of her former pro bono client with other lawyers at the firm.”[34] The Committee noted that in some extreme situations, screening of the former clinic student might not even be adequate to protect the interests of the former client:

For example, screening may be insufficient to avoid disqualifying a law firm if the law student had substantial exposure at the clinic to confidential information relevant to a matter handled by the law firm, and the size and structure of the firm make it difficult to effectively screen the law student from the firm lawyers involved in the matter.[35]

The Committee concluded that in such cases, the firm might not be able to continue the representation at issue unless the firm “(a) obtains the informed consent of the former client, (b) does not hire or terminates the employment of the law student, or (c) withdraws from or declines the adverse representation.”[36]

At the other end of the spectrum are situations where the former clinic student’s involvement with a clinic client was limited. The Committee offered as an example “a single meeting with a client who seeks narrowly circumscribed advice regarding, for example, how to respond to a summons.”[37] Those short-term limited encounters would not trigger any protective measures by the firm, absent a known conflict of interest.[38]

For situations in the former category, i.e., where the clinic students “had substantial responsibility for representing a client at a clinic and had knowledge of a conflict at the time she sought or considered accepting future employment with a law firm,” the student would not be permitted to continue the clinic work after accepting employment from the firm. However, students in the latter category, in which the involvement with the client was only short-term and limited, might be able to continue or resume their clinic work.[39]

Thus, in the context which is the subject of this opinion—students working as summer law clerks or interns in a firm or law school graduates who have not yet been admitted to the bar—whether the student would be able to continue working with the clinic over the summer or return to the clinic in the student’s third year, would have to be evaluated carefully by both the firm and the faculty member overseeing the clinic.

IV. Conclusion

Because unadmitted law students and recent law school graduates are not lawyers the imputed conflicts rules do not apply when those individuals are hired by law firms or legal assistance organizations. As such, a conflict check for imputed conflicts is not required. Firms, however, must still protect confidential information that may have been obtained by these individuals as a result of prior employment. While screening is not a cure to imputed conflicts under Rule 1.10, screening may be an effective method to avoid the improper use or disclosure of confidential information by unadmitted law students and recent law school graduates. Clinical students who are functioning as a lawyer while participating in a law school clinic present special considerations, and firms and clinics should consider whether a screen would effectively protect a clinical client’s confidential information or additional action should be taken.