October 24, 1985
There is no ethical prohibition against a lawyer representing a client against a former employer or former client of the lawyer, provided:
- That business relations have ceased between the lawyer and former employer or client;
- That the claim does not involve the same subject matter for which the lawyer was formerly employed or retained; and
- That the lawyer obtained no factual information upon which to proceed in the present case while employed or retained by the former employer or client.
References: MCPR DR 4-101(B); C-7; CI-250, CI-541.
A lawyer was employed as inside counsel for a automobile manufacturer for five years, working in the product liability defense section. The lawyer's responsibilities included assisting in preparation of answers to interrogatories, evaluating a case for settlement, assisting in development of expert testimony, and otherwise assisting outside counsel in defending cases. Since leaving the corporation's employment, the lawyer has been engaged in plaintiffs' personal injury law, and now seeks to represent a client in a products liability case against the corporation alleging design defects that made the vehicle unsafe. The lawyer asks whether the representation may be undertaken.
MCPR DR 4-101(B) states:
"B. Except when permitted under DR 4-101(C), a lawyer shall not knowingly:
- Reveal a confidence or secret of his client.
- Use a confidence or secret of his client to the disadvantage of the client.
- Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure."
The thrust of DR 4-101(B) is that a lawyer should not accept representation against a former client if the representation would result in a conflict of interest or disclosure of confidences of the former client. The rule was restated as follows in CI-541:
"Formal Opinion 7 of this Committee and CI-250 indicate that before a lawyer may bring an action against a former client all business relations must cease, the subject matter of the new representation may not be substantially related to that of the old, and the information upon which the lawyer proceeds must not involve reliance upon confidential communications or secrets imparted to the lawyer by the former client."
As stated in CI-250:
"There is no ethical prohibition against representing a client against a former client or employer of the lawyer provided the business relations between the lawyer and former client or employer have ceased.
"As stated in C-7, such representation would be improper if the lawyer had represented the former employer involving the same subject matter or if the lawyer had been in a situation or position with the former employer to have actually gained or been in a position to gain information on which to proceed in the present case. This would be a breach of confidential relationship."
In the present case, several years have elapsed since the lawyer terminated employment with the corporation. While employed at the corporation the lawyer had no involvement with any cases involving reasonableness of truck design for the purpose of ingress and/or egress. It appears, therefore, that the lawyer possesses no confidential information acquired during the previous relationship with the corporation that would be useful in litigating the case for the prospective client. Therefore, from the facts given, it would not result in any conflict of interest or the use of confidential information obtained from the previous representation of the corporation.
Accordingly, representation of the products liability client against the corporation is not prohibited.