LEO: Conflict of Interest - Representing LE Op. 993
Conflict of Interest - Representing Client Adverse
to Client of Former Firm.
November 4, 1987
You advised that Attorney A, formerly with a law firm, has left that firm
and opened his own office. During the time Attorney A served with the law
firm, another attorney in the same firm assumed representation of a client
in the litigation of a real estate matter and filed suit on behalf of the
plaintiff in that case. The Attorney A had no knowledge nor actively
participated in the handling of the case with the old law firm. Subsequent
to leaving the firm, Attorney A has been engaged by the defendant in the
same real estate litigation matter, and has become counsel of record with
another attorney for the defendant. Apparently, full disclosure has been
made, and the plaintiff has been unwilling to waive any conflict regarding
the former law firm associate's representation of the defendant in the
case. You asked if continued representation is permissible.
We refer you to LE Op. 240 and LE Op. 940. We also call your
attention to Canons 4 and 9, and Disciplinary Rule 5-105(D) [ DR:5-105]
of the Code of Professional Responsibility. It is the opinion of the
Committee that a resumption arises that Attorney A has acquired
confidential information, based on the relationship with his former law
firm. This presumption can be rebutted. Silver Chrysler Plymouth v.
Chrysler Motors Corp., 518 F.2d 751 (CA 2 1975). According to the facts
you have presented, Attorney A did not learn of any confidential
information regarding the plaintiff's case. On these facts the presumption
appears to be rebutted.
The Committee opines, that since Attorney A was not in any way involved
with the plaintiff's case nor did Attorney A learn of any confidential
information regarding the plaintiff's case, it would not be improper for
Attorney A to represent the defendant.
Committee Opinion November 4, 1987