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.