LEO #1613 CONFLICTS; CONFIDENCES; FORMER CLIENT; ATTORNEY EMPLOYED
BY GOVERNMENT AGENCY AFTER HAVING REPRESENTED FORMER
CLIENT WHO WAS TARGET OF AGENCY ENFORCEMENT
You have presented a hypothetical situation in which a first-year
associate at a large law firm was assigned to work on several
related anti-trust class action cases approximately three months
before leaving the firm to work for a government agency that
enforces anti-trust laws. The anti-trust class action cases
involve the same or related anti-trust issues, and the associate's
firm represents the same single defendant in each case. In all,
there are approximately forty defendants, the majority of which had
signed a joint defense agreement with the associate's client.
You indicate that the full extent of the associate's involvement in
the cases over the three-month period consisted of the following
activities:
1. Researched and wrote a draft brief and a memorandum in
opposition to class certification in one of the cases.
In the course of preparing these procedural documents,
the associate had access to its client's files but did
not refer to any of those files because the only facts
relevant to the brief and memorandum were the plaintiff's
allegations, which the associate gleaned from the
plaintiff's complaints. The associate also did not have
access to any other defendant's files but did receive
copies of some privileged joint defense correspondence.
2. Composed a draft answer in one case on behalf of the
firm's client only. Reviewed other defendants' draft
answers circulated pursuant to a joint defense agreement
in the course of selecting language for the draft answer
but did not have access to other defendants' files. The
associate did not rely upon its client's files in
preparing the draft but did have conversations with a
more senior associate regarding facts relating to the
client. The draft answer was finalized by the more
senior associate.
3. Reviewed third-party documents produced to the plaintiffs
pursuant to a third-party subpoena; some documents
contained information about certain joint defendants.
4. Composed initial draft responses to interrogatories and
document requests on behalf of the firm's client.
Attended one meeting with the client only (no joint
defendants) regarding responses to document requests. A
more senior associate performed all the factual
investigation for the responses to interrogatories and
finalized the draft by filling in the relevant facts.
The senior associate also finalized the responses to
document requests. Reviewed other defendants' privileged
draft objections and responses to interrogatories and
document requests in the course of selecting language for
the firm's client's draft responses. Did not have access
to other defendants' files at any time but did receive
and review privileged joint defense correspondence
discussing joint defense strategy as it affected
responding to discovery.
5. Attended one joint defense meeting at which some, but not
all, members of the joint defense were represented. The
purpose of the meeting was to discuss strategy for
responding to interrogatories and document requests. Did
not have access to other defendants' files at any time,
although some attorneys for other defendants discussed
their planned responses to interrogatories and document
requests based upon the limited information they had
received from their clients up to that date. (The
meeting occurred before many attorneys had an opportunity
to review their clients' files.)
You further indicate that at no time did the first-year associate
have access to any of the other defendants' files, but the
associate did receive regularly joint defense correspondence
relating to discovery and other aspects of the pending litigation.
Finally, you advise that the associate subsequently began to work
for a federal agency that enforces anti-trust laws. You have asked
the committee to opine, relative to the facts presented, as to
several issues regarding possible conflicts between the associate's
present governmental employment and the former clients.
The appropriate and controlling Disciplinary Rules related to your
inquiry are DR 4-101 which provides for the preservation of client
confidences and secrets; 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; and DR 5-105(E) which provides that if a lawyer
is required to decline employment or to withdraw from employment
under DR 5-105, no partner or associate of his or her firm may
accept or continue such employment.
The committee opines relative to the facts presented as follows:
1. With regard to whether a lawyer-client relationship
exists between the associate and the joint defendants
such that DRs 5-105(D) and 4-101 are triggered, the
committee is of the opinion that no attorney-client
relationship with the co-defendants has been established
to which DR 5-l05 would be applicable. The committee has
previously opined, however, that a potential client's
initial consultation with an attorney creates an
expectation of confidentiality which must be protected by
the attorney, as demanded by DR 4-l0l, even where no
attorney-client relationship arises in other respects.
SeeLEOs #1453, #1546.
In the facts presented, although the associate did not
have access to the co-defendants' files, the associate was
provided with copies of joint correspondence relating to
case facts and strategies. The committee is of the
opinion, therefore, that the associate has actually
received confidences and secrets from the co-defendants.
Furthermore, the information gained relative to co-
defendants is also construed to be protected as a secret
of the client/defendant since it was gained in the
professional relationship, was apparently intended by the
client to remain confidential, and since the interest of
the co-defendants is parallel to the interest of the
client/defendant. Thus it is the committee's view that
although the associate would not necessarily have a
conflict related to the joint defendants, it would be
incumbent upon the associate to preserve any secrets or
confidences received, in accordance with DR 4-l0l.
However, the committee cautions that a determination as
to whether any such information was actually received
requires an examination of all circumstances by a finder
of fact. See, e.g., Duncan v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 646 F.2d l020, 1027 (5th Cir. l98l).
The committee is of the further opinion that both
variations on your inquiry, i.e., (a) whether the co-
defendants signed/participated in the joint defense
agreement, and (b) whether the co-defendants attended the
one joint defense meeting the associate attended, are
immaterial to the conclusions reached.
2. Under DR 5-105(D), an attorney shall not represent
another person in the same or substantially related
matter [emphasis added] 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.
With regard to the determination of the existence of a
"substantial relationship", the committee has not
established a precise test for substantial relatedness
under DR 5-105(D). The committee, however, has previously
declined to find substantial relatedness in instances that
did not involve either the same facts (LEO #1473), the
same parties (LEOs #1279, #1516), or the same subject
matter (LEOs #1391, #1399, #1456).
Under the facts presented, then, the committee would find
not substantially related any anti-trust enforcement which
did not involve either the same relevant facts necessary
to prove a violation, the same parties (the same co-
defendants), or the same subject matter (anti-trust). See
Tessier v. Plastic Surgery Specialists, Inc., 73l F.Supp.
724, 730-31 (E.D.Va. l990), and Rogers v. The Pittston
Co., 800 F.Supp. 350 (W.D.Va. l992).
3. With regard to a time limit on any bar against the
associate's participation in all kinds of antitrust
enforcement, the committee believes that a response to
this inquiry has been rendered moot since the committee
has opined above that there is no attorney-client
relationship between the associate and the co-defendants.
However, the committee notes that Disciplinary Rule 5-
105(D) does not provide for a time limit on the
prohibition against representing a current client adverse
to a former client. The plain language of the Rule
provides a total bar to representation, unless consent of
the former client, after full disclosure, is received.
Furthermore, the committee has previously opined that an
attorney's responsibility to preserve a client's secrets
or confidences survives the death of the client, thus
placing no time limit on such protections. See LEO #l207;
see also LEO #l307.
4. As to whether any disqualification that applied to the
associate would be imputed to the government agency or the
associate's new office, the committee is of the opinion
that, since there is no attorney-client relationship
between the associate and the co-defendants, the provision
of DR 5-l05(E) regarding imputed disqualification are
inapposite to the facts you present.
[DRs 4-101, 5-105(D) and (E); LEOs 1207, 1279, 1307, 1391, 1399,
1453, 1456, 1473, 1516, 1546; Duncan v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 646 F.2d 1020, 1027 (5th Cir. 1981); Tessier
v. Plastic Surgery Specialists, Inc., 731 F.Supp. 724, 730-31
(E.D.Va. 1990); Rogers v. The Pittston Co., 800 F.Supp. 350
(W.D.Va. 1992)]
Committee Opinion
January 13, 1995
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