LEO: Confidentiality - Disclosure of Client LE Op. 1147
Confidentiality - Disclosure of Client Identity - Former Clients:
Revealing Identity of a Former Client Who Is Opposing
Counsel in Divorce Action.
January 4, 1989
You have indicated that you were recently involved in a custody and
support action in which counsel for the adversary party had represented
you in your own divorce approximately five years ago.
On the morning of the first hearing in the custody matter, your client
asked whether opposing counsel had ever represented you in a divorce. You
were quite surprised by this question and your client's response that her
husband had "thrown it in her face."
It is your opinion, given the character of opposing counsel's client,
that disclosure of his prior representation of you was improper since it
was inevitable that his client would use this information in an attempt to
intimidate your client. It appears from the facts you have presented that
there is a difference of opinion as to whether opposing counsel actually
divulged any confidential information. Opposing counsel denies having ever
discussed any confidential matters with his client. In fact, he is
perplexed by the allegations and asks for more particulars. However, you
know of no other means through which his client could have obtained this
You wish to know whether the attorney's disclosure of his prior
representation of you to his present client was improper.
Given the previous attorney-client relationship and the current
professional relationship between opposing counsel and you, the Committee
believes that disclosure to opposing counsel's client as well as to your
own client may have been required prior to acceptance of employment,
pursuant to DR:5-101(A) and DR:5-105(A). Disciplinary Rule 5-101(A)
provides as follows:
A lawyer shall not accept employment if the exercise of his professional
judgment on behalf of his client may be affected by his own financial,
business, property or personal interest, except with the consent of his
client after full and adequate disclosure under the circumstances.
Disciplinary Rule 5-105(A) also provides that a lawyer shall decline
preferred employment if the exercise of his independent, professional
judgment in behalf of a client is likely to be adversely affected by the
interests of another client.
The Committee opines that an attorney's disclosure to his client of a
prior representation of another client is ethically proper where the
former client and the attorney are the opposing counsel in the current
litigation. This disclosure, together with the fact that the prior
representation will not adversely affect the attorney's independent
professional judgment, should be made to the client to allow him or her
the opportunity to give his or her informed consent for employment.
Further, the Committee believes that the mere fact of prior representation
in a divorce matter should not have caused embarrassment, nor should it
have been detrimental. The Committee opines that once information has
become a matter of public record, it is no longer confidential unless the
attorney should have known or it is obvious that such information may be
construed to constitute a "secret" under DR:4-101 and should remain
confidential (emphasis added).
Committee Opinion January 4, 1989
See also LE Op. 1270, LE Op. 1284, LE Op. 1300, LE Op. 1347, LE Op.
1349, LE Op. 1352, LE Op. 1367, and LE Op. 1407.