July 21, 1982
Unless the former client consents, a lawyer may not accept proffered employment if the lawyer would or could be placed in the position of litigating against a former client or using the confidences gained in representing the former client against the client.
References: MCPR DR 5-105; CI-2, CI-276, CI-341, CI-379, CI-397, CI-411, CI-431, CI-479.
A lawyer represented a married couple in the drafting of wills and a trust agreement. All consultations were joint, and no separate consultations were held by the lawyer with either spouse. The lawyer also gave the couple advice relating to a acquisition of a partnership interest in a real estate investment venture. The couple is now divorcing, and one party has sought the lawyer's services. The partnership agreement was a possibly still is a joint marital asset.
MCPR DR-105 provides:
"(A) A lawyer shall decline proffered employment if the exercise of independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105(C).
"(B) A lawyer shall not continue multiple employment if the exercise of independent professional judgment in behalf of a client will be or is likely to be adversely affected by representation of another client, except to the extent permitted under DR 5-105(C)
"(C) In the situations covered by DR 5-105 (A) and (B), a lawyer may represent multiple clients if it is obvious that the interests of each will be adequately represented and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of independent professional judgment on behalf of each.
"(D) If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of the lawyers or of the firm may accept or continue such employment."
This precise inquiry has been ruled on numerous previous occasions. See e.g., CI-431, CI-411, CI-379, CI-341, CI-276, CI-2, CI-397 and CI-479.
The single most prevalent characteristic shown in these referenced opinions is that if a lawyer seeks to appropriately avoid the apparent potential conflict of interest representation problems and concerns, notice, full disclosure and consent must be made to and acknowledged by the former client. Grievance Comm. v. Rattner, 152 Conn 59, 65; 203 A2d 82 (1964), a firm may not accept any action against a person whom they are presently representing even though there is no relationship between the two cases.
In view of the fact that the clients have not consented, the representation would be improper. The lawyer would be placed in the awkward position of litigating against a former client, while possibly using the confidences of a former client against the client. In accord, CI-379.