RAY, Judge.
Appellants challenge the trial court's denial of their motion to disqualify appellees' counsel, Insley & Race, LLC. On appeal, appellants argue that the screening measures implemented by Insley & Race were are not allowed under Georgia law, or in the alternative, that the screening measures implemented were inadequate to protect against a conflict of interest that arose when it was discovered that a paralegal working for its counsel's firm had been formerly employed with appellants' counsel's firm. Finding no error, we affirm.
This action stems from the shooting death of Monica Renee Williams on January 3, 2010, at an apartment complex owned and operated by appellees. Appellants are Belinda Hodge, who is the administratix of Williams' estate, and Williams' son, Tavarius NyQuan Williams. Shortly after Williams' death, appellants retained the law firm of Hanks Brookes, LLC, to pursue claims associated with Williams' death.
Kristi Bussey was employed as a paralegal by Hanks Brookes at the time of Williams' death and at the time the law firm was retained by Hodge. While working at Hanks Brookes, Bussey assisted in the investigation of Williams' death, communicated with appellants regarding the case, and participated in meetings regarding the case, including those discussing the investigation, counsel's thoughts regarding the case, and proposed strategy. Bussey even assisted Hodge in
In March 2010, the law firm of Insley & Race, LLC, was retained by the Scottsdale Insurance Company to represent appellee URFA-Sexton, LP, in connection with the instant suit. Insley & Race then proceeded to conduct a pre-suit investigation and evaluation of the incident. On March 15, 2011, approximately one year after Insley & Race was retained and six months after the conclusion of the pre-suit investigation, Bussey interviewed for a paralegal position at Insley & Race. Prior to hiring Bussey, the hiring partner at Insley & Race called and obtained an employment reference for Bussey from a partner at Hanks Brookes, who did not disclose any possible conflict of interest. At the time Bussey was hired and came to work at Insley & Race, she was not aware that the firm had been involved in a pre-suit investigation of the Williams matter. Accordingly, no screening measures were implemented to shield her from disclosing any knowledge she possessed regarding the case at that time.
On October 5, 2011, Bussey became aware of the conflict of interest and brought it to the attention of the partners at Insley & Race. Insley & Race then implemented screening measures, including restricting her access to the law firm's electronic file and the physical file and instructing her not to have any discussions regarding the case with anyone at the firm. Bussey provided affidavit testimony that she had never disclosed nor discussed any confidential information obtained about the Williams case during her employment with Hanks Brookes to any person at Insley & Race.
Appellants filed their complaint in this case on November 7, 2011. On December 6, 2011, two months after becoming aware of the conflict in interest, defense counsel disclosed Bussey's employment at their firm to Hanks Brookes. On January 20, 2012, appellants filed a motion to disqualify defense counsel, arguing that Bussey's employment with defense counsel was a conflict of interest that required disqualification of the entire firm. On June 21, 2012, the trial court denied appellants' motion to disqualify defense counsel, finding that defense counsel had "implemented appropriate and effective screening measures to protect against any disclosure of confidential information." Appellants obtained a certificate of immediate review of that order and filed an application for interlocutory review in this Court, which was granted.
1. In their first enumeration of error, appellants assert that the Georgia Rules of Professional Conduct do not allow screening to overcome a clear conflict of interest, and thus, the trial court erred in denying their motion to disqualify defense counsel. We disagree.
On appeal, we review a trial court's ruling on a motion to disqualify counsel under an abuse of discretion standard. Cardinal Robotics, Inc. v. Moody, 287 Ga. 18, 22, 694 S.E.2d 346 (2010).
This Court has not previously addressed the standards governing a disqualification motion based on the hiring of a nonlawyer employee. With respect to lawyers, our Supreme Court has adopted a standard stating that a conflict of interest arises whenever counsel undertakes representation of an interest that is adverse to that of a former client, as long as the matters embraced in the pending suit are "substantially related" to the factual matters involved in the previous suit. See Crawford W. Long Mem. Hosp. of Emory Univ. v. Yerby, 258 Ga. 720, 721(1), 373 S.E.2d 749 (1988). See also Rules 1.9 and 1.10 of the Georgia Rules of Professional Conduct. This strict rule is based on conclusive presumption that confidences and secrets were imparted to the attorney during the prior representation and that such representation would "create[] an impermissible appearance of impropriety." See Yerby at 722(3), 373 S.E.2d 749.
Appellants argue that the standards applied to disqualify lawyers should also apply to paralegals. Thus, appellants urge that the entire firm of Insley & Race should be automatically disqualified from the present case because of the confidences Bussey obtained while working at Hanks Brookes.
Citing to the Alabama Rules of Professional Conduct and an advisory opinion, Alabama State Bar, Formal Opinion 2002-01,
The American Bar Association's Committee on Professional Ethics has considered whether a law firm that hires a paralegal may continue representing clients whose interests conflict with interests of the former employer's clients on whose matters the paralegal has worked. ABA Comm. On Ethics and Professional Responsibility, Informal Op. 88-1526 (1988). After surveying case law and ethics opinions from a number of jurisdictions, the Committee concluded that the new firm need not be disqualified, as long as the firm and the paralegal strictly adhere to the screening process set forth in its opinion, and as long as the paralegal does not reveal any information relating to the former employer's clients to any person in the employing firm. Id. A number of courts have since relied on the ABA's opinion to allow continued representation under similar conditions. See Smart Indus. Corp. v. Superior Court, 179 Ariz. 141, 148(C), 876 P.2d 1176 (1994); In re Complex Asbestos Litigation, 232 Cal.App.3d 572, 595-596, 283 Cal.Rptr. 732 (1991).
(Citations and punctuation omitted.) Bernocchi v. Forcucci, 279 Ga. 460, 462(2), 614 S.E.2d 775 (2005). Accord Harris v. The Southern Christian Leadership Conference, Inc., 313 Ga.App. 363, 369(7), 721 S.E.2d 906 (2011). These concerns, however, must be balanced against the concerns articulated by appellant, i.e., "the need to maintain ethical standards of professional responsibility" and the concern for "the preservation of public trust in the administration of justice and the integrity of the bar." (Citation omitted.) Smart Indus. Corp., supra at 149(C), 876 P.2d 1176.
Using this balanced approach, this Court shares the concerns regarding the mobility of nonlawyer employees and the protection of a client's right to his choice of counsel expressed by the ABA and by the appellees. We agree that client confidences may be appropriately safeguarded if a firm hiring a paralegal from another firm takes appropriate steps to screen that paralegal in compliance with the screening measures adopted by the Georgia Rules of Professional Conduct in other contexts, namely in Rule 1.11, governing successive government and private employment, and Rule 1.12, governing former judges or arbitrators. Those screening guidelines, set forth in Rule 1.0(p), and Comments 8-10 to Rule 1.0, state that the disqualified person should not
These precautions would tend to reduce any danger that the nonlawyer might share confidential information with members of the law firm. Therefore, the challenged firm may rebut any presumption that a nonlawyer shared confidential information by showing that sufficient precautions have been taken to guard against any disclosure of confidences. See Smart Ind. Corp., supra at 149-150, 876 P.2d 1176.
However, we adopt the American Bar Association's precaution that these screening practices cannot be used to avoid disqualification in the following circumstances: (1) when information relating to the representation of an adverse client has in fact been disclosed, or (2) when screening would be ineffective or the nonlawyer necessarily would be required to work on the other side of a matter that is the same or substantially related to the matter on which the nonlawyer has worked. See ABA Op. 88-1526. Ordinarily, however, disqualification is not required so long as "the practical effect of formal screening has been achieved." In re Complex Asbestos Litigation, supra at 596, 283 Cal.Rptr. 732.
2. Appellants argue that if Georgia allows screening measures to be implemented to avoid imputed disqualification arising from the change in employment by a nonlawyer employee, that the trial court erred in denying their motion to disqualify because Insley & Race did not institute screening measures in a timely manner. We disagree.
Bussey provided affidavit testimony that she began working at Insley & Race in March 2011, but that at the time of her hiring she was not aware that the firm was involved in a pre-suit investigation of the Williams matter. Thus, no screening measures were implemented to shield her from knowledge of the case at the time of her hiring. On October 5, 2011, Bussey discovered the conflict of interest and brought it to the attention of the partners at Insley & Race, who implemented screening measures at that time. Those screening measures included restricting her access to the law firm's electronic file and the physical file, and instructing her not to have any discussions regarding the case with anyone at the firm. Bussey provided affidavit testimony that she had never disclosed nor discussed any confidential information obtained about the Williams case during her employment with Hanks Brookes to any person at Insley & Race.
Based on this evidence, the trial court concluded that the screening measures implemented by Insley & Race were adequate and that Bussey had not divulged any confidential information to the firm prior to the implementation of the screening measures. As stated above, we review a trial court's ruling on a motion to disqualify under an abuse of discretion standard. Cardinal Robotics, Inc., supra. "The question on review is whether there is any evidence to support the trial court's finding of facts." Southern Shipping Co. v. Oceans Intl. Corp., 174 Ga.App. 91, 94(2), 329 S.E.2d 263 (1985). Having reviewed the record, we find that the trial court's findings are not clearly erroneous. See Daines v. Alcatel, S.A., 194 F.R.D. 678, 682-683(II)(B) (E.D.Wash.2000) (disqualification not required if firm provides "convincing evidence" that no confidential information passed before the institution of the screen and the subsequently erected screen is adequate).
Judgment affirmed.
BARNES, P.J., and MILLER, J., concur.
(Citation and punctuation omitted.) Smart Indus. Corp, supra at 148-149(C), 876 P.2d 1176.