July 10, 1981
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 that represented the plaintiff in the subject litigation, provided that such attorney 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.
References: Canon 9; DR 4-101(B).
Your office represents one of several defendants in a civil action that are pending in your local court. Such action involves numerous issues of fact and law. One of the members of the law firm who initially represented plaintiffs left the firm and joined your law firm. Prior to joining your firm no actual knowledge of the facts in the subject were known.
There has been objection by the plaintiffs to your continued representation of one of the defendants in the lawsuit. You have attempted to obtain a local attorney with sufficient experience to represent your client as one of the defendants in the litigation and have been unable to find one.
Your inquiry as to whether you may continue to represent your client, the defendant, in the litigation. Consideration of the problem requires review of Canon 9 of the Code of Professional Responsibility that states: "A lawyer should avoid even the appearance of professional impropriety." A close examination of the Canon and the formal opinions interpreting the Canon would lead to the conclusion that said Canon is not applicable to your continued representation of the defendant in the subject litigation.
The question might be asked as to whether the confidence and secrets of the plaintiffs are being preserved under Canon 4 since an attorney who is a member of your law firm previously was a member of a law firm that represented plaintiffs. The attorney had no actual knowledge of the facts in the case while a member of plaintiffs' law firm. There, plaintiffs' confidences and secrets are not being violated. The attorney who was previously a member of the firm representing plaintiffs is not now involved in the defense of the action on behalf of your client, who is one of the defendants. To avoid any "appearance f professional impropriety" such attorney should not in the future be involved in the defense of said action.
You have made every effort to obtain a local attorney with sufficient experience to substitute and represent the defendant and have been unable to do so. Your withdrawal from representing your client, who is one of the defendants, might prejudice the defendant's rights. You should therefore continue to represent the defendant.