Legal Ethics Opinion #1596
Conflict of Interest - Former Client: Attorney
Representing New Client Adverse to Former Corporate Client.
You have presented a hypothetical situation in which
Attorney was employed, between 1989 and 1990, by President of
Corporation X to handle certain legal matters related to
claims against President and Corporation X concerning the
alleged services performed by a consultant and certain other
claims. These matters were handled to the full satisfaction of
President. When President resigned in June 1990, Attorney's
relationship with Corporation X terminated. Since June 1990,
Attorney has not handled any legal matters for Corporation X.
New managers took over Corporation X, and Attorney had no
relationship with them.
In 1993, Attorney was contacted by Ms. R, who had worked for
Corporation X in a branch office. Ms. R had no knowledge about
the matters for which Attorney represented Corporation X in
1989 and 1990. Before contacting Attorney, Ms. R had been told
that she had been defamed by an employee of Corporation X
regarding her professional character and reputation. The
alleged defamation occurred after Attorney's disassociation
with Corporation X. Ms. R wanted to retain Attorney to sue
Corporation X for defamation and possible illegal discharge by
the new managers of Corporation X.
You further indicate that the alleged defamatory statements
about Ms. R were not related to matters on which Attorney had
represented Corporation X. The subject matter of Ms. R's
claims (defamation and possible illegal discharge) is
unrelated to the subject matter of Attorney's earlier
representation of former President (claims for compensation
for consulting services). You indicate that there was no
substantial relatedness between the two matters, separated
both in substance and in time by several years, and no
confidences or secrets were or are involved. Attorney was not
privy to any of Corporation X's confidential information and
you indicate that any confidences or secrets Attorney may have
had in connection with his representation of former President
are not related to Ms. R's case.
Furthermore, you torney has obtained an affidavit from
former President of Corporation X stating under oath that the
charges against her and Corporation X in 1989 and 1990 were
"totally independent of and had no relation to Ms. [R] in any
way. Ms. [R] was not aware of any pertinent facts about these
claims since, among other things, she worked in a different
office."
You have asked the committee to opine whether, under the
facts of the inquiry, it is improper for Attorney to represent
a former employee of Corporation X against Corporation X,
Attorney's former client.
The appropriate and controlling Disciplinary Rules related
to your inquiry are DR 4-101, which provides, in pertinent
part, that an attorney should preserve a client's confidences
and secrets; and DR 5-105(D), which states that a lawyer who
has represented a client in a matter shall not thereafter
represent another person in the same or substantially related
matter if the interest of that person is adverse in any
material respect to the interest of the former client unless
the former client consents after disclosure.
The committee has repeatedly opined that the earlier
representation of a client who is now the adverse party in a
suit brought on behalf of another client is not per se
sufficient to warrant disqualification of the lawyer on
ethical grounds. See e.g., LE Op. 1399 LE Op. 1194 LE Op. 1139
See also City of Cleveland v. Cleveland Elec. Illuminating,
440 F. Supp. 193, 208 (N.D. Ohio 1977). Additional critical
factors to the determination of disqualification are the
relatedness of the two matters and the issue of whether the
lawyer obtained secrets and confidences of the first client in
the course of the representation.
Assuming the facts as you have provided them, which facts
indicate that Attorney represented President and Corporation
X on matters unrelated to the issues for which Ms. R seeks
Attorney's representation, the committee is of the opinion
that those facts demonstrate no substantial relatedness
between the previous and subsequent representations. See LE
Op. 1399 Furthermore, again assuming the facts provided, there
is no indication that any secrets or confidences of President
or Corporation X relative to R's claims of defamation and
illegal discharge were obtained by Attorney. Attorney's
familiarity with the Corporation's operations or the
personalities of its management, without more, is not a
disqualifying conflict of interest. Rogers v. The Pittston
Co., 800 F. Supp. 350 (W.D. Va. 1992). Therefore, the
committee opines that there is no per se impropriety in
Attorney's continued representation of Ms. R under the
circumstances as presented. However, the committee cautions
that should it be determined by a finder of fact that eithd or
that Attorney did in fact receive secrets and confidences of
President or Corporation X, it might then be necessary for
Attorney to withdraw from representation of Ms. R. See LE Op.
1456
Committee Opinion
June 14, 1994
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