An attorney's entire practice is devoted to representing
plaintiffs in medical malpractice claims and the attorney's firm
desires to employ an attorney presently employed in a medical
malpractice defense law firm. At the time of the offer of
employment, there are multiple cases which are being handled by
the plaintiff's lawyer's firm in which the defense firm is
representing the opposing party, and in which the attorney to
whom the offer will be made is participating.

The committee was asked to opine as to any ethical improprieties
relative to (1) plaintiff's medical malpractice firm's hiring of
an attorney from a defense firm against whom the hiring firm has
active litigation; (2) defense attorney's becoming involved in
litigation involving former clients if the hiring [plaintiff's]
firm is contacted about a claim against a health care provider
formerly represented by defense attorney/new hire; and (3)
plaintiff's firm withdrawing from litigation in progress in order
to employ an attorney formerly involved in the defense, assuming
that an agreement was made that the attorney would have no
contact with the litigation in progress.

The facts presented clearly indicated that the attorney/new hire
was actively participating in continuing litigation on the other
side of cases which continue in the firm.  Under those
circumstances, the committee opined that, absent the consent of
the attorney's former client (the defendant in the medical
malpractice cases) after full disclosure, it would be improper
for the attorney to personally represent the plaintiff and
similarly improper for his new firm to continue to represent the
plaintiff.  Such conduct would be equally improper whether the
plaintiff's firm currently represented the adverse party or was
subsequently contacted by the adverse party on a specific matter
on which the attorney/new hire had previously worked.  The
committee further opined that the only cure to such impropriety
would be the former client's consent, as described by DR
5-105(D), and that no cure would be effected simply by an
agreement that the attorney would have no contact with the
litigation.  The attorney's involvement would not be violative of
DR 4-l0l(B) so long as the attorney had not worked on the matter
while at his former firm and so long as he did not possess any
secrets or confidences of the former client which could be used
to the disadvantage of the former client or to the advantage of
the new client.  The lawyer must be cognizant of the potential
effect of his inability to use any such confidences or secrets
upon the requirement to provide zealous representation when
accepting new clients who are adverse to those he represented
while employed at his former firm.

[DR 4-101(B), DRs 5-105(D) and (E); LEOs #284, 441, 672, 933,
993, 1085, 1139, 1180, 1384; Westinghouse Electric Corp. v. Kerr
McGhee Corp., 580 F. 2d 1311 (7th Cir. 1978), cert. denied 439
U.S. 555 (1978); Silver Chrysler Plymouth v. Chrysler Motor
Corp., 518 F. 2d 751 (2nd Cir. 1975).]

Council Opinion 
February 22, l992