Legal Ethics Opinion No. 1377         
   Conflict of Interest - Multiple Representation: Representing
             One Co-Defendant After Obtaining Adverse
                 Information From Other Defendant.
  You have advised that Attorney was retained by the insurer of
Trucking Company and its employee, Driver, in an accident case
which resulted in a wrongful death suit including a count for
negligent entrustment of the vehicle by Trucking Company to
Driver. You have indicated that after Attorney filed Grounds of
Defense on behalf of both Trucking Company and Driver, the
Attorney learned of a number of traffic violations prior to the
instant accident which Driver contends she reported to her
employer, Trucking Company. However, Trucking Company denied that
most of the violations had been reported by Driver. You have
stated that Attorney withdrew as counsel for Driver and has
continued to represent Trucking Company.

  You have asked the Committee to opine as to the propriety of
Attorney continuing the representation of Trucking Company in
light of his former representation of Driver.

  The appropriate and controlling Disciplinary Rules relative to
your inquiry are  DR:4-101(B), regarding preservation of client's
confidences and secrets, and  DR:5-105(D), regarding
representation of one client impairing professional judgment on
behalf of another client. Disciplinary Rule 4-101(B) provides
that, barring the circumstances enumerated in  DR:4-101(C) and
(D), a lawyer shall not knowingly reveal a confidence or secret
of his client; and shall not use a confidence or secret of his
client to the disadvantage of the client or his own or a third
person's advantage, unless the client consents. Disciplinary Rule
5-105(D) provides that a lawyer shall not represent a new client
in a matter that is the same or substantially related matter to
that of a former client if the interest of the new client is
adverse in any material respect to the interest of the former
client unless the former client consents after disclosure.

  The Committee has previously opined that it is improper for an
attorney to continue to represent either Client A or Client B in
a matter once they became adverse to each other, and, as such, t
withdraw from representing both clients. (See LE Op. 371 Prior LE
Op. 441 also found that the mere fact that a lawyer had formerly
represented a person who is now the adverse party in a suit
brought by the lawyer on behalf of another client, did not
warrant the lawyer's disqualification on ethical grounds.
However, a violation of  DR:4-101(B) could result if the lawyer
possessed confidential information which he had obtained from his
first client.

  Since, as you have stated in the facts of the inquiry, the
underlying basis of the suit includes a charge of negligent
entrustment of the vehicle by client/Trucking Company to former
client/Driver, it appears to the Committee that the issue of
whether the Trucking Company knew of Driver's prior traffic
violations is a central issue to the defense of the wrongful
death action against Trucking Company. The Committee believes
that given the conflicting interests between the former and
current client, the Attorney may not continue the representation
of Trucking Company unless he has obtained the informed consent
of former client/Driver after full disclosure of the effect on
the exercise of his professional judgment on behalf of the
adverse client and provided that the attorney has not gained any
information that could be construed to be a confidence or secret
from Driver which could result in a violation of  DR:4-101(B). 

  Committee Opinion
  September 13, 1990