August 27, 1984
A law firm hiring a lawyer formerly employed at a law firm representing a party adverse to a client of the hiring firm, may continue its representation of the client if the hired lawyer does not possess confidences or secrets of the adverse party and is screened from participating in the case for the hiring firm.
References: MCPR DR 4-101, DR 5-105; CI-652.
A law firm contemplates hiring a lawyer currently employed by a law firm appearing as opposing counsel in one or more cases in which the hiring firm represents clients. The new lawyer would not participate in the handling of the matters at the hiring firm. The law firm asks whether hiring the lawyer would require withdrawal from those cases.
MCPR DR 4-101(B) states:
"Except when permitted under DR 101(C), a lawyer shall not knowingly:
"(1) Reveal a confidence or secret of his client.
"(2) Use a confidence or secret of his client to the disadvantage of the client."
Canon 9 provides that "a lawyer should avoid even the appearance of professional impropriety."
"A law firm may continue to represent one of several defendants in a civil action when one of the members of such law firm previously was a member of a law firm which represented the plaintiff in the subject litigation, provided that such lawyer who was a member of the law firms that represented both plaintiff and such defendant has no actual knowledge regarding the case and does not participate on behalf of the defendant client in said action." CI-652.
The question thus is what knowledge, if any, the hired lawyer has of the facts in the subject cases from the prior firm. If the hired lawyer has actual knowledge, the hiring firm would have to withdraw. The term "facts" besides including the actual circumstances of the dispute, would also include the legal analyses of the problems involved and strategies or tactics which the previous firm may have worked out with their client(s) since these are either confidences or secrets of the client or necessary outgrowths of them.