Legal Ethics Opinion No. 1384

  Confidences and Secrets--Conflict of Interests--Former Client:
Representing Plaintiff in Matter when Partner Previously Provided
Services to Defendant in Unrelated Matter

     You have advised that Attorney A was retained to represent
the interests of Client X in a lawsuit against Defendant, a
principal in a real estate firm, and his corporation, the real
estate firm, after X's former attorney withdrew from the
representation.  After several months went by, Defendant claimed
that Attorney B, a member of A's law firm, had earlier handled
some collection matters for Defendant or his corporation.
Although Attorney A was unaware of any former representation of
Defendant or Defendant Corporation by any attorney affiliated
with his firm, Attorney B subsequently discovered that a few
matters, involving collecting monies for certain owners of real
estate whose rental accounts had been managed by Defendant's
firm, had been referred to him through another attorney.  You
have indicated that Attorney B had obtained relevant information
from employees of Defendant's Corporation to aid in collecting
delinquent rent due B's clients/landlords, but he did not gain
any information regarding Defendant or his corporation.  You have
stated that Defendant Corporation's sole involvement in the
collection matters handled by Attorney B was that of caretaker of
B's client's records.  

     In addition, you have stated that Defendant claims that 
Attorney B also had a financial interest in one of the matters he
handled which created a potential conflict in Attorney A's
current representation.  However, neither Attorney A nor Attorney
B are aware of any such financial interest unless payments made
to Defendant or his corporation from the proceeds of the
collection lawsuits constitutes such an interest.

     You have asked the committee to opine as to whether, under
the facts of the inquiry, Attorney A may ethically continue the
representation of Client X against Defendant and Corporation. 
For purposes of this opinion, the committee will assume that the
instant representation of Client X by Attorney A is not
substantially related to the representation of Attorney B's
former clients in collection matters in which Defendant and his
corporation were indirectly involved but were not named parties.

     The appropriate and controlling Disciplinary Rules relative
to your inquiry are DR 4-101(A) and (B) and DR 5-105(D). 
Disciplinary Rules 4-101(A) and (B) provide that a lawyer shall
not knowingly reveal a confidence or secret of his client, or use
a confidence or secret of his client to the disadvantage of the
client or to his own or a third person's advantage.  
Disciplinary Rule 4-l0l(A) defines a "confidence" as information
protected by the attorney-client privilege under applicable law
and a "secret" as other information gained in the professional
relationship that the client requested  be held inviolate or the
disclosure of which would be embarrassing or likely to be
detrimental to the client.  

     Disciplinary Rule 5-105(D) provides that a lawyer who has
represented a client in a matter shall not thereafter represent
another 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 full disclosure.

     The committee has previously opined that the mere fact that
a lawyer has formerly represented a person who is now the adverse
party in a suit brought by the lawyer on behalf of another
client, is not sufficient to warrant disqualification of the
lawyer on ethical grounds, unless the lawyer possessed
confidential information which he obtained from his first client
which could be used in derogation of DR 4-101(B).  See LEO #441,
LEO #672.  Since nothing in the facts of the inquiry indicate
that an attorney-client relationship previously existed between
Attorney B and Defendant or his corporation, the committee
believes DR 5-105(D) could not become operative as there is no
former client whose interests may be prejudiced by the present
representation.  In fact, both Attorneys A and B, after having
studied their respective client matters, concluded that neither
was aware of any prior representation of Defendant or his

     Likewise, you have indicated that neither Attorney A nor
Attorney B gained any knowledge of Defendant or his corporation
nor did Attorney B ever communicate with Defendant.  Under the
facts, the committee believes the materials provided by an
employee of Defendant's corporation to Attorney B, with regard to
his representation of clients whose rental accounts the defendant
corporation managed, were obtained for the purposes of B's
clients and not for any purpose related to the obtaining of
information about Defendant or his corporation.  

     Therefore, the committee opines that the instant
representation of Client X would not be improper unless a
previous attorney-client relationship existed between Attorney B
and Defendant or his corporation, the subject of which was the
same or substantially related to the representation in question. 
In such
circumstances, B would be precluded from the instant
representation as a result of confidential information gained
about Defendant or his corporation.  See LEO #1184. 

     Finally, the committee believes that the financial interest
alluded to in the inquiry, or Defendant's management fees which
may have been paid as a result of a successful return on a
judgment in the collection matters handled by Attorney B, does
not constitute an impermissible personal or financial conflict
between an attorney and a client as prohibited by DR 5-101(A).

Committee Opinion
September 13, 1990