LEO #1638 CONFLICT OF INTEREST; CONFIDENCES AND SECRETS;
          DEFENDING CIVIL MATTER WHERE PLAINTIFF'S EXPERT WITNESS
          IS PRESIDENT OF CORPORATION CURRENTLY REPRESENTED BY
          DEFENDING FIRM

You have presented a hypothetical situation in which a law firm
has been hired to represent a defendant in a pending civil case
involving a construction dispute.  The plaintiff's expert for
this case is the president of a corporation which the law firm
has, on a few occasions in the past, represented in litigation,
sometimes as plaintiff and sometimes as defendant. The committee
assumes that the president will testify if the case goes to
trial.  One case, where the law firm is defending the corporation
in a discrimination action, remains pending.  The law firm is
also the registered agent for this corporation.  In the course of
its representation of the corporation, the law firm has gained
general knowledge of the scope and nature of the corporation's
operations.  The information which the law firm has gained does
not fall outside the scope of information that could readily be
discovered in the course of discovery in the pending construction
dispute litigation.

You have inquired as to whether the law firm may continue to
defend the construction case, given its past and current
representation of the corporation.

The appropriate and controlling disciplinary rule relevant to
your inquiry is DR 4-101(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.  DR 4-101(A) defines
confidences as information protected by the attorney-client
privilege and secrets as information gained in the professional
relationship that the client has requested be held inviolate or
the disclosure of which would be embarrassing or would be likely
to be detrimental to the client.  The committee noted in Legal
Ethics Opinion 1546 that because the "secret" provisions of DR 4-
101 are broader than the attorney-client privilege, secret
information may not be revealed even if it is subject to
discovery.

The Committee has previously opined that it is improper for an
attorney to continue to represent a party when, in the course of
zealously representing that party, it becomes necessary to attack
the credibility of a former client with confidences or secrets
because that former client is now an adverse witness.  Legal
Ethics Opinion 1407.  In the facts of that opinion, the law firm
had previously defended the adverse expert witness on charges of
malpractice and could have used that knowledge to discredit him
in the current litigation when he was denying ever having been
accused of malpractice.  

Under the facts presented, the committee assumes that the law
firm has represented the corporation, but has not represented the
president personally.  Thus, the attorney-client relationship
exists between the law firm and the corporation.  See EC 5-18. 
Even if no attorney-client relationship exists or existed between
the president and the law firm, there nevertheless may be an
expectation of confidentiality giving rise to Canon 4 duties.


In Legal Ethics Opinion 1457, the committee determined that a
former president of the board of directors of a condominium, who
was going to be a witness on behalf of the condominium and was
for that purpose interviewed by the attorney for the condominium,
had an expectation of confidentiality that the attorney must
protect unless the attorney told the former president that he did
not represent him and that nothing he said in their discussions
would be kept confidential.  Absent such disclosures, any
admissions by the former president which could be used to the
advantage of the condominium and the disadvantage of the former
president would disqualify the attorney from representing the
condominium because he could not reveal such information under DR
4-101, nor fail to reveal it, if required, in the course of
zealously representing his client under DR 7-101.  (See also
Legal Ethics Opinion 1407).  

The committee believes that if, in the course of representing the
corporation, the law firm had any discussions with, or received
any information from the president, such communications would
give rise to an expectation of confidentiality unless it gave the
president the disclosures and warnings required under the
circumstances presented in LEO 1457.  The committee notes that
expectations of confidentiality can arise even without formal
attorney-client relationships. In Legal Ethics Opinion 1546 the
committee opined that a potential client gave to an attorney
information protected under DR 4-101 sufficient to disqualify the
attorney from representing an opposing party even though the
attorney never represented the potential client.  See Legal
Ethics Opinion #452.

Thus, any confidences or secrets, as defined by Canon 4, that the
law firm gained from the president in the course of representing
the corporation, in circumstances where the president was not
warned of any lack of confidentiality and where his expectations
were of confidentiality, could not be used against the president
or to anyone else's advantage without his consent.  Using such
confidences or secrets to discredit the president as an expert
witness would thus be violative of DR 4-101(B).

The opportunities in which the law firm has had to gain
information regarding the president's credibility as an expert
witness, as well as other personal information that could be used
to find information regarding the president's credibility, have
been numerous.  The law firm has represented the corporation more
than once in the past and is currently representing it, and the
president who, presumably, has been involved with these cases. 
The law firm is the corporation's registered agent and has gained
general knowledge of the scope and operation of the corporation
by and through communications with the president.

Thus, the committee concludes that it would be proper for the law
firm to continue to represent the defendant in the pending
litigation only if it has gained no information from the
president under any circumstances that would have indicated an
expectation of confidentiality as discussed above, or if no such
information thus gained can be of any use whatsoever to the
current defendant so that the law firm will not need to use it,
or if the president consents after full disclosure, or if the
president was adequately warned that what he told the law firm
would not be held in confidence because the law firm did not
represent him or his interests.

In addition the law firm must fully and adequately disclose to
its client in the pending construction case that the expert
witness designated by plaintiff's counsel is president of a
corporation which the law firm represents and has represented in
the past; and, the law firm must obtain informed consent, after
adequate disclosure of all known facts creating a possible
conflict, to continue defending the client in the construction
case.

[DRs 4-101(A) and (B), 7-101; EC 5-18; LEOs 452, 1407, 1457,
1546]

Committee Opinion 
April 19, 1995