Ethics Opinion

Opinion No. 76-14

December 1976

Summary: An attorney may represent the wife in a divorce proceeding where another attorney associated with him in the same office has previously represented the husband in a substantially related matter, only if both the husband and the wife consent to the current representation after full disclosure.

Facts: An attorney employed by a legal aid organization has been asked to represent a woman in a divorce proceeding. The attorney discovered that the legal aid office represented the husband of the new client in a bankruptcy proceeding some two years before the wife sought the services of the legal aid office. A closed file concerning the office's prior representation of the husband remains in the office files, although the attorney states that he has not examined its contents. We are also informed that the attorney who formerly represented the husband in the bankruptcy proceeding is no longer employed by the legal aid office. We are now asked for an opinion as to whether or not the attorney may, consistent with his professional obligations, represent the wife in the divorce proceedings. The attorney states that he is "hesitant to accept this client especially in view of the role financial information can play in the processing of a divorce."

Discussion: An attorney must preserve the confidence and secrets of a client. Canon 4. An attorney may not reveal the client's confidences or secrets, DR 4-101(B)(1), or use confidences or secrets to the disadvantage of a client, DR 4-101(B)(2), or to the advantage of another, DR 4-101(B)(3). The obligation of an attorney to preserve the confidences and secrets of a client survives the termination of his or her employment. EC 4-6. See our Opinion 75-7. An attorney is not relieved of the obligations of DR 4-101 because confidences and secrets pertain to a former client. As we have previously stated, we believe that the term "client," as used in DR 4-101(B), must include a former client as well as a present or continuing client. Opinion 75-7. An attorney has a present and continuing duty to maintain the confidences and secrets obtained during the course of a prior representation.
An attorney may not thereafter oppose a former client on behalf of another in the same matter or one which is substantially related to the subject matter of the prior representation. There exists a real danger in such cases that an attorney may intentionally or inadvertently use a former client's confidences and secrets to his or her disadvantage. In such cases, an attorney may not accept proffered employment in opposition to a former client since the former client would be likely to be adversely affected by the acceptance of the proffered employment. DR 5-105(A). A number of courts have, therefore, developed a rule that an attorney cannot oppose a former client if there exists a substantial relationship between the subject matter of the present representation and the former representation. See Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corporation, 518 F. 2d 751 (2d Cir. 1975); American Roller Company v. Budinger, 513 F. 2d 982 (3d Cir. 1975); Redd v. Shell Oil Company, 518 F. 2d 311 (10th Cir. 1975); Emle Industries, Inc. v. Patentex, Inc., 478 F. 2d 562 (2d Cir. 1973); T.C. Theatre Corp. v. Warner Bros. Pictures, 113 F. Supp. 265 at 268-9 (S.D.N.Y. 1953).
An attorney is not, however, precluded from opposing a former client on matters which are unrelated to the subject matter of the former representation. In unrelated situations, there exists no real danger that a former client's trust and confidence in his or her counsel will be abused. The test, it has been held, is not whether the lawyer did, in fact, receive confidential information during his previous employment which might be used to the former client's disadvantage; rather, if "it can reasonably be said that in the course of the former representation the attorney might have acquired information related to the matter of his subsequent representation ... it is the court's duty to order the attorney disqualified." See Emle Industries, Inc. v. Patentex, Inc., supra, at 571.
On the facts presented in this inquiry, the committee has assumed that the subject matter of the bankruptcy case, which obviously concerned the financial condition of the husband, was substantially related to the subject matter of the subsequent divorce proceeding against him. The fact that the prior bankruptcy proceedings were completed more than two years before the wife sought to retain the legal aid office may arguably diminish the substantiality of the relationship between the subject matter of the current representation and the former representation. Although the facts presented may raise doubts as to whether the husband would be seriously prejudiced by the office's representation of the wife, the Canons of Ethics caution the attorney to avoid even the appearance of impropriety. Canon 9. Moreover, it has been stated that Canon 9 dictates that doubts should be resolved in favor of disqualification. Hull v. Celanese Corporation, 513 F. 2d 568, 571 (2d Cir. 1975). Therefore, if the same attorney in the legal aid office attempted to represent the wife in the pending divorce proceeding after having represented the husband in a prior bankruptcy proceeding, an impermissible conflict of interest would exist, if our assumption above is correct. DR 5-105(A).
A conflict of interest for one partner or associate in a law firm, or one associate in a legal aid office, is a conflict of interest for all members and associates in such firm or office. DR 5-105(D). That there is a presumption or inference that information obtained by one member of a firm or associate in an office will be shared by all his or her other partners and/or associates has been apparently held in Massachusetts by a divided court. See Commonwealth v. Geraway, Mass Adv. Sh. (1973) 1281, 301 N E. 2d 814. Some cases in other jurisdictions have held that this imputation of knowledge may be rebutted. See Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corporation, 18 F. 2d 751 (2d Cir. 1975); People v. Wilkins, 28 N.Y. 2d 53, 320 N.Y.S.2d 8, 268 N.E.2d 756 (1971).
On the facts here presented, the attorney does in fact have continuing access to the contents of the husband's closed file. The ready availability of information concerning the legal aid office's prior representation of the husband, which may well include information which is either confidential or secret, militates in favor of the imputation of knowledge in this instance.
Even though the imputation of knowledge among firm members and office associates applies in this case, the lawyer may still proceed with the representation of the wife if he obtains the consent of both the husband and the wife after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment. See DR 5-105(C).

Permission to publish granted by the Board of Delegates, 1976. As stated in the Rules of the Committee on Professional Ethics this advice is that of a committee without official governmental status.