Legal Ethics Opinion No. 1407

      Attorney/Client Relationship--Confidences and Secrets

You have indicated that Attorney A, located in one office of a
law firm, represented Doctor X in at least two prior malpractice
cases.  Subsequently, Attorney B, located in another office of
the same firm and apparently without knowledge of the firm's
earlier representation of Doctor X, assumed representation of
Doctor Y who has been sued for malpractice in a case in which the
prior client, Doctor X, has been named as an expert witness for
the plaintiff.  During the discovery deposition of Doctor X, he
denied being a defendant in any prior malpractice cases. 
Attorney B ultimately learns from another member of the firm that
the firm had earlier represented Doctor X in at least two
malpractice cases. 

You have asked that the committee opine as to the propriety of
the law firm's continued representation of Doctor Y in light of
its prior representation of Doctor X and of his deposition
testimony.

The appropriate and controlling disciplinary rule relevant to
your inquiry is DR 4-l0l(B) which precludes a lawyer from
knowingly revealing a confidence or secret of the client and from
using such information either to the disadvantage of the client
or to the advantage of himself or a third person unless the
client consents after full disclosure.   Although the
Disciplinary Rule defines a confidence as "information protected
by the attorney-client privilege under applicable law," the term
"secret" has a much more expansive application in that it refers
to "other information gained in the professional relationship
that the client has requested by held inviolate or the disclosure
of which would be embarrassing or would be likely to be
detrimental to the client."  DR 4-l0l(A); EC 4-4, 4-5. 

The committee has earlier opined that it is improper for an
attorney to represent a new client when the attorney earlier
represented the opposing client in an unrelated matter and became
privy to confidential information relating to the issues in the
current suit.  See LEO #792; see also LEOs #ll47.  Of
significance is the conclusion reached by the committee when it
opined that the attorney's responsibility to protect the client's
secrets and confidences survives the termination of
representation, even beyond the death of the client.  See LEO
#l207; see also EC 4-6.  Furthermore, even where information
regarding a former client's legal matter has become public
information, the committee has opined that it is incumbent upon
the attorney to preserve the client's confidentiality.  See LEO
#l349.

Under the facts you present, the committee is of the opinion that
the firm's continued representation of Doctor Y would be improper
since it would place Attorney B in the untenable position of
having to challenge the credibility of the firm's former client,
Doctor X, after having supported his credibility in defending him
against malpractice charges, in order to zealously represent the
interests of the present client, Doctor Y.  

The committee construes the fact of Doctor X having been a
defendant in two earlier malpractice actions as a secret despite
the possibility that such information is available through other
sources, since it constitutes information gained in the
professional relationship.  Therefore, the committee of the
further opinion that it would be violative of DR 4-l0l to reveal
such information in the course of attempting to impeach Doctor
X's testimony as an expert witness since to do so would be
embarrassing, likely to be detrimental to the witness/former
client, and constitute both a disadvantage to Doctor X/former
client and an advantage to Doctor Y/present client.  Obviously,
it would be permissible to reveal such information with the
informed consent of Doctor X, as permitted by DR 4-l0l(C)(l). 
See Alabama Op. 90-25 (6/28/90), ABA/BNA Law. Man. on Prof.
Conduct 90l:l066; Oregon Op. 5l0 (3/87), ABA/BNA Law. Man. on
Prof. Conduct 90l:7l02.

Committee Opinion
March 12, 1991