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What is the ethical liability of lawyers at Johnson and Johnson; of lawyers at...

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What is the ethical liability of lawyers at Johnson and Johnson; of lawyers at potential employer law firms; of the paralegal under Model Rule 5.3?

Ethics and Liability: A paralegal quits the firm of Johnson & Johnson. When she leaves, she takes client documents she prepared while at the firm. The documents contain confidential client information. The paralegal is showing these documents to potential employers as writing samples.

(a) What is the ethical liability of attorneys at Johnson & Johnson under Model Rule 5.3?
(b) What is the ethical liability of attorneys at law firms where she is seeking employment under Model Rule 5.3?
(c) What is the paralegals liability?

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(a) The ethical duty of the attorneys at issue here is to keep safe client secrets and specifically to take reasonable steps to ensure that their employees abide by the professional obligations of the lawyer.  Thus, if the lawyers at Johnson & Johnson have taken reasonable steps to prevent the dissemination of privileged information by their employees (for example, by telling them not to remove any information or work-product from the office, etc.) then they have likely fulfilled their professional obligation, at least under 5.3.

(b) This is a somewhat sticky point.  5.3 does not contemplate the obligations of non-supervisory attorneys.  How could it?  After all, the lawyers who might eventually potentially be the paralegal’s future employers have no control over her actions (of course, if they think she might just as readily reveal their clients’ secrets, they won’t likely hire her).  Certain other professional obligations might require them to make the conduct of this former employee known to Johnson & Johnson, especially if they were involved in the cases to which the privileged information relates.

(c) The paralegal's liability is, in the circumstances you describe, considerable.  It is made much worse if Johnson & Johnson fulfilled their professional obligation and made clear to their employees that this kind of action is forbidden.  That would indicate that the paralegal intentionally breached privilege and made private information public.  I do not know precisely what civil and criminal actions might be brought against her (breach of her employment contract, intentional infliction of emotional distress, various privacy violations, maybe even embezzlement) but I suspect very strongly that if Johnson & Johnson were held accountable for breaching its duties to the client as a result of this behavior by its former employee, it could seek indemnification from her for its losses.

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