LEO: Conflicts of Interests - Disclosure  LE Op. 361


Conflicts of Interests - Disclosure of Privileged

Communications - Disqualification - Attorney

as Witness - Appearance of Impropriety.


March 10, 1980


Two attorneys represented two intervening defendants in a case against

the United States Government. Several years later, the attorneys were

asked to represent plaintiff landowners in a suit against the United

States Government which arises from the matter litigated earlier. One of

the intervening defendants in the earlier litigation reversed its position

and is in concert with the plaintiffs in the present litigation. The

Committee concluded (1) If the Government deposes the attorneys as

witnesses on the defense of laches, the attorneys' testimony may be

prejudicial to their clients. If it is, the attorney must withdraw from

employment. [See II: DR:2-108(A)(1) and DR:5-102(B).] (2) If the

attorneys are not called as witnesses, the attorneys may represent the

plaintiffs so long as such representation does not require the attorneys

to disclose and/or use privileged information obtained during the earlier

representation. [See II: DR:4-101; EC:4-6 and DR:5-105(D).] (3)

Although the attorneys had earlier represented intervening defendants in

support of the position taken by the United States Government, there was

no attorney/client relationship existing between the Government and the

attorneys. It is, therefore, ethically permissible for the attorneys to

oppose the Government even though the possibility exists for using the

work product and other information disclosed to the attorneys by the

Government. (4) While the attorneys' participation in the present

litigation may constitute an appearance of impropriety, it is not

unwarranted and there is no ethical proscription against the attorneys'

participation. [See II: EC:9-2.]


Committee Opinion March 10, 1980