Legal Ethics Opinion No. 1457

Confidentiality of Information--Conflict of Interest--Preparing
Former Condominium Association Board President for Deposition 
While Representing Association in Suit by Unit Owner

You have indicated that a Virginia attorney represents a D.C.
condominium which has been sued in D.C. Superior Court by a unit
owner.  The unit owner plaintiff noticed the deposition of the
former condominium Board President, who is still a member of the
Board of Directors and who will likely be the condominium's
principal witness.   When preparing for his deposition, the
former Board President discloses to the attorney information
which indicates that he exceeded his authority as a member of the
Board and contributed to the injury of which the plaintiff
complains.  The former Board President is informed that the
lawyer represents the condominium and not him.  The attorney has
reason to suspect that, if the former Board President is advised
to seek separate counsel, he will withhold or conceal any
information which would further implicate him.

You have asked the committee to opine as to several issues
related to whether the attorney is required ethically to advise
the former Board President to seek separate counsel. 

The appropriate and controlling Disciplinary Rules related to
your inquiry are DR 5-105 which dictates that a lawyer must
refuse to accept or continue employment if the interests of
another client may impair the independent professional judgment
of the lawyer; DR 7-l03(A)(2) which directs that a lawyer shall
not give advice to a person who is not represented by a lawyer,
other than the advice to secure counsel, if the interests of such
person are or have a reasonable possibility of being in conflict
with the interests of the lawyer's client; DR 4-101(B) which
provides that a lawyer shall not knowingly reveal or use a
confidence or secret of his client; and DR 7-l02(B)(l) which
mandates that a lawyer who receives information which clearly
establishes that a person other than his client has perpetrated a
fraud upon a tribunal shall promptly reveal the fraud to the

The committee responds to your inquiries relative to the facts
you have presented as follows:

     1.   As to whether the attorney must advise the former Board
          President to seek independent counsel, the committee
          believes that DR 7-l03(A)(2) is controlling.  Thus,
          under the dictates of that Rule, the committee opines
          that the attorney has a duty to advise the former Board
          President to seek independent counsel.

     2.   Because the former Board President and condominium have
          conflicting interests which can neither be reconciled
          nor cured by consent, the committee opines that the
          attorney may not continue to prepare the former Board
          President for the upcoming deposition.

     3.   As to whether the attorney may disclose to the
          condominium client the information learned from the
          former Board President during the course of the
          deposition preparation, the committee opines that,
          unless the former Board President was advised that the
          attorney did not represent him and that any information
          divulged during the conference would not be treated as
          confidential, and although no attorney-client
          relationship may have arisen in other respects, the
          former Board President's meetings with the attorney
          created an expectation of confidentiality which must be
          protected by the attorney.  Thus, the committee opines
          that, under the dictates of DR 4-l0l(B), the attorney
          may not disclose to the condominium the information
          learned from the former Board President.

     4.   The committee is of the view that in order to zealously
          represent the condominium, it would be necessary for
          the attorney to use the information learned from the
          former Board President during the deposition
          preparation.  Since the attorney is prohibited from
          revealing or using such information, the committee
          opines that the 
          attorney's continued representation of the condominium
          would be compromised.  The committee believes that the
          attorney cannot both zealously represent the
          condominium and protect the confidentiality afforded
          the former Board President.

     5.   Finally, you have inquired whether the attorney must
          make disclosure, and if so, to whom, if, at the time of
          the deposition, the former Board President provides
          conflicting evidence or conceals evidence previously
          provided to the attorney.  Having reached the
          conclusions in questions one through four above, the
          committee finds this question to be moot as it relates
          to the attorney in question.  For information as to the
          issue in general, however, the committee refers you to
          LEOs #1347, 1367, and  #l45l.     

Committee Opinion
April 13, 1992