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Opinion Number: 1990-03

Lawyer should not undertake representation of client in matter adverse to former client which matter is substantially related to prior representation and where lawyer gained confidential information which may be used to detriment of former client.

QUESTION:

"Several years ago I talked to a person that I will refer to hereinafter as Ms. X. This relationship resulted in Ms. X hiring me for the purpose of protecting her interest in an estate matter ongoing in another county. This matter concerned a disagreement that she was having with her brothers, sisters, etc. relative to the disposition of estate property. Ultimately, I was assisted by another attorney in the county where the estate property was located and the matter was resolved. I would estimate that my last contact with Ms. X relative to the estate or any other matter was approximately three years ago. At that point in time I not only conferred with Ms. X but also her husband. At no time on that occasion were any matters of a domestic nature discussed concerning Ms. X and her husband.

Perhaps eighteen months ago Ms. X contacted my office by telephone and requested to see me relative to a domestic matter. I refused to see her and instructed my secretary that I would not be interested in representing her in any other matters. No information on that occasion was received from Ms. X relative to any domestic entanglements.

Several months ago or fall 1989, Ms. X filed a bill of complaint for divorce against her husband. Ms. X is being represented in this matter by an Anytown attorney. Ms. X's husband contacted me and retained me to defend this case. I have been doing so for the last several months. In the fact that I have never discussed with Ms. X any domestic matters and in the fact that I was not representing her currently on any other matters and had not for several years, I saw no problem in undertaking to represent her husband. As of late, a Motion to Recuse has been filed by Ms. X's attorney of which a copy I enclose for your inspection. She alleges in this petition that I have gained information from formerly representing her estate matters that can be used against her in the domestic matter. In my opinion, this is totally untrue. In any event, I would appreciate your opinion as to whether I should withdraw from this matter."

ADDITIONAL FACTS:

Attached as additional information is the Motion to Recuse filed in this matter.

ANSWER:

In previous opinions the Disciplinary Commission has opined that it is permissible for an attorney to undertake representation against a former client but has expressly conditioned that employment upon several considerations. First, the Commission has held that there should be no substantial relationship between the first representation and the subsequent representation. Secondly, the Commission has held that the attorney, by virtue of the first representation, should not have been in a position to have learned confidences or secrets of the first client that could subsequently be used to the detriment of, or to embarrass, the former client. Third, the Commission has stated that the relationship between the attorney and the first client must not have been of such a character or nature so as to preclude the attorney from rendering, to the subsequent client, full, vigorous and undiluted loyalty. On occasion the Disciplinary Commission has required waiver from the former client before permitting the subsequent representation.

On the facts stated, and particularly in view of the fact that the former client has asserted that there is a substantial relationship between the prior representation and the present representation and further that certain confidences and secrets relating to the former client's mental and physical background, which could now be used to the detriment of, or to embarrass, the former client were made known to the attorney by virtue of the former representation, we are of the opinion that it would not be ethically proper for you to continue in your representation of Mr. X. The standards imposed by the Commission are in large part subjective. When there is a conflict or a disagreement such as this between the attorney and the former client as to disqualification, in an abundance of caution, this conflict should be resolved in favor of the former client.

DISCUSSION:

In lieu of further discussion see Opinions 87-108,88-06, and 88-69.

AWJ/vf

1/22/90