March 30, 1981
A lawyer may represent one client on a claim against a former client if all business relations with the former client have ceased, the subject matter of the new representation is not substantially related to that of the old, and the information upon which the lawyer proceeds does not involve reliance upon confidential communications or secrets imparted to the lawyer by the former client.
If the information obtained from the former client is in any way relevant to the proposed representation, then the attorney may not represent the new client unless the former client consents to the representation following full disclosure of the use of his/her confidences or secrets.
If the former client consents, continued representation of the current client depends upon his or consent to the representation following full disclosure of any interest of the attorney on behalf of the past client.
References: DR 4-101(C), DR 5-101.
A lawyer is presently handling a slip and fall case on behalf of a plaintiff who is suing two defendants formerly represented by the lawyer's firm. The prior representation involved a suit by these clients as plaintiffs against a corporate defendant in an entirely unrelated slip and fall case. Inquire is made as to whether any conflict would prevent the lawyer from continuing to represent the current clients against the former clients.
The answer to this inquiry requires examination of two separate provisions of the Code of Professional Responsibility. Canon 5 concerns the problem of the exercise of independent professional judgment. Canon 4 requires a lawyer to "preserve the confidences and secrets of a client."
C-7 and CI-250 indicates 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 the old, and the information that the lawyer proceeds must not involve reliance upon confidential communications or secrets imparted to the lawyer by the former clients. See also CI-435 and CI-541.
From the facts, it appears that the firm's business relationship with the former clients has ended, because their suit resulted in an amicable settlement over two years ago. It also appears that the two cases are not substantially related because they involve entirely different factual circumstances. However, it is not entirely clear whether the lawyer is now proceeding on any confidences or secrets imparted to the firm by the former clients.
Canon 4 requires a lawyer to protect both confidences and secrets of a client. It is irrelevant if the information supplied to the lawyer by the former clients is now a matter of public record. Rather, the correct inquiry is whether the lawyer past representation has provided the lawyer with any information that can now be used against them. You state that no financial matters were ever discussed with the former clients. However, there was a recovery by way of settlement, and therefore your firm has some knowledge of the assets of the former clients which might be helpful in effectuating a recovery on behalf of the new client against them. Further, you must also consider whether your prior representation imparted to your firm any personal information that could now be used against your former clients. See CI-492. Knowledge of your former client's habits, which may have been relevant to a contributory fault allegation in the prior case, could now indicate some avenue upon which to plead and prove their negligence in the current matter. Similarly, evidence of credibility, if obtained, could be of obvious relevance in the current case.
If the former client consents following this procedure, your continued representation is subject to one additional requirement. DR 5-101(A) requires you to disclose to your current client the extent to which your independent professional judgment would be affected by the past representation. The representation would be allowed so long as you fully disclose any interest, including loyalty to the former client, which could compromise or affect your judgment.
If there is any question in your mind that you will violate DR 4-101, then you must obtain the consent of your former clients before proceeding with your current client's case. If you cannot obtain the former client's consent, you must withdraw from any further representation of your current client in the matter. See DR 2-110(B)(2); CI-465, CI-486. Your proposed representation of your current client also depends upon the client's consent following the disclosure required by DR 5-101.