David Steward asked about walling off non-billing professionals in ethical
walls.
David, when I was still in the Law Firm environment, I asked about this
exact issue (the reason I asked is explained below) and tried to survey
some of the large firms. What I found was that most but not all firms
do NOT wall off the non-billers.
For those that DID wall them off, they felt the potential conflict risks
merited that level of caution. For those that did NOT wall them off, they
felt that the potential risks were minimal.
The conclusion I reached (completely based on my impressions; I have
absolutely no data to back this up) was that it really comes down to an
available resources issue. If a firm has non-billing staff levels
sufficiently large to meet needs even if some of those individuals are
walled off from clients/matters, then they include non-billers in ethical
walls. I think that only very large firms can do that. In mid-sized (or
smaller) firms, where non-billers support multiple clients/matters,
walling off a non-billing employee would limit that individualıs
availability to do other work.
The reason to include non-billers in an ethical wall would be to minimize
the risk of the non-biller doing or saying something that could influence
the firmıs work for a client. Since non-billers rarely have the
opportunity to influence client work at all, the risks seem minimal.
Of course, itıs up to your Risk Partner or General Counsel to make the
ultimate decision.
(Now, as to the reason this came up at my prior firm: There was an
employee who was supervising the file room in the firmıs New York office.
She called me because she wasnıt able to see a particular client/matter
file in the firmıs DMS or Records application both of which had ethical
walls applied. When I dug into it, I found that this employee had
originally hired into the firm as a para-legal, and did billable work for
the short time that she was in this role. One of the matters sheıd done
work for ended up having an ethical wall applied, and it affected her
access. Itıs at that point that I started researching how other firms
handled such an issue. It was and still is my opinion that support
staff should never be walled off, regardless of what billable work they
may have done in the past, but as I said, above I didnıt find any
consensus on this issue across the industry. I took the issue to our
General Counsel, who ducked it by asking that another file clerk in that
New York office do the small bit of work that had initiated the original
inquiry.)
Iıd be interested in what you end up doing.
Pilar C. McAdam, CRM, ERMm
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Los Angeles, CA
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