Legal Ethics Opinion #1596
      Conflict of Interest - Former Client: Attorney
    Representing  New Client Adverse to Former Corporate Client.
      You have presented a hypothetical situation in which
    Attorney was employed, between 1989 and 1990, by President of
    Corporation X to handle certain legal matters related to
    claims against President and Corporation X concerning the
    alleged services performed by a consultant and certain other
    claims. These matters were handled to the full satisfaction of
    President. When President resigned in June 1990, Attorney's
    relationship with Corporation X terminated. Since June 1990,
    Attorney has not handled any legal matters for Corporation X.
    New managers took over Corporation X, and Attorney had no
    relationship with them.
      In 1993, Attorney was contacted by Ms. R, who had worked for
    Corporation X in a branch office. Ms. R had no knowledge about
    the matters for which Attorney represented Corporation X in
    1989 and 1990. Before contacting Attorney, Ms. R had been told
    that she had been defamed by an employee of Corporation X
    regarding her professional character and reputation. The
    alleged defamation occurred after Attorney's disassociation
    with Corporation X. Ms. R wanted to retain Attorney to sue
    Corporation X for defamation and possible illegal discharge by
    the new managers of Corporation X.
      You further indicate that the alleged defamatory statements
    about Ms. R were not related to matters on which Attorney had
    represented Corporation X. The subject matter of Ms. R's
    claims (defamation and possible illegal discharge) is
    unrelated to the subject matter of Attorney's earlier
    representation of former President (claims for compensation
    for consulting services). You indicate that there was no
    substantial relatedness between the two matters, separated
    both in substance and in time by several years, and no
    confidences or secrets were or are involved. Attorney was not
    privy to any of Corporation X's confidential information and
    you indicate that any confidences or secrets Attorney may have
    had in connection with his representation of former President
    are not related to Ms. R's case.
      Furthermore, you torney has obtained an affidavit from
    former President of Corporation X stating under oath that the
    charges against her and Corporation X in 1989 and 1990 were
    "totally independent of and had no relation to Ms. [R] in any
    way. Ms. [R] was not aware of any pertinent facts about these
    claims since, among other things, she worked in a different
      You have asked the committee to opine whether, under the
    facts of the inquiry, it is improper for Attorney to represent
    a former employee of Corporation X against Corporation X,
    Attorney's former client.
      The appropriate and controlling Disciplinary Rules related
    to your inquiry are  DR 4-101, which provides, in pertinent
    part, that an attorney should preserve a client's confidences
    and secrets; and  DR 5-105(D), which states that a lawyer who
    has represented a client in a matter shall not thereafter
    represent another person 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 disclosure.
      The committee has repeatedly opined that the earlier
    representation of a client who is now the adverse party in a
    suit brought on behalf of another client is not per se
    sufficient to warrant disqualification of the lawyer on
    ethical grounds. See e.g., LE Op. 1399 LE Op. 1194 LE Op. 1139
    See also City of Cleveland v. Cleveland Elec. Illuminating,
    440 F. Supp. 193, 208 (N.D. Ohio 1977). Additional critical
    factors to the determination of disqualification are the
    relatedness of the two matters and the issue of whether the
    lawyer obtained secrets and confidences of the first client in
    the course of the representation.
      Assuming the facts as you have provided them, which facts
    indicate that Attorney represented President and Corporation
    X on matters unrelated to the issues for which Ms. R seeks
    Attorney's representation, the committee is of the opinion
    that those facts demonstrate no substantial relatedness
    between the previous and subsequent representations. See LE
    Op. 1399 Furthermore, again assuming the facts provided, there
    is no indication that any secrets or confidences of President
    or Corporation X relative to R's claims of defamation and
    illegal discharge were obtained by Attorney. Attorney's
    familiarity with the Corporation's operations or the
    personalities of its management, without more, is not a
    disqualifying conflict of interest. Rogers v. The Pittston
    Co., 800 F. Supp. 350 (W.D. Va. 1992). Therefore, the
    committee opines that there is no per se impropriety in
    Attorney's continued representation of Ms. R under the
    circumstances as presented. However, the committee cautions
    that should it be determined by a finder of fact that eithd or
    that Attorney did in fact receive secrets and confidences of
    President or Corporation X, it might then be necessary for
    Attorney to withdraw from representation of Ms. R. See LE Op.
      Committee Opinion
      June 14, 1994