Ethics Opinions

Opinion No. 77-16

December 1977

Summary: An attorney may not ethically represent a plaintiff in a claim for personal injuries where the attorney was previously retained by an insurance company to represent the same defendant in an action brought by a different plaintiff involving a substantially related claim.

Facts: In 1971 Attorney A was retained by an insurance company to represent a defendant in a case involving personal injuries allegedly sustained by reason of undue flammability of a garment. The defendant was alleged to be the manufacturer or distributor of the garment. The action terminated in 1973 after some discovery including answers of the defendant to the plaintiff's interrogatories.
In 1975 a different plaintiff brought an action against the same defendant alleging a claim of personal injuries due to a flammable garment. The facts do not indicate whether the garments involved in both cases were identical in style, but the basis of the claim, insufficient testing, is identical. The inquirer states that it is apparent that in the defense of the first case, A obtained a substantial amount of information regarding the methods of inspection and testing followed by the defendant in the manufacture and distribution of its garments. A, retained by the second plaintiff, files his appearance for the plaintiff in the second case approximately one year after the suit has been commenced. The facts do not indicate whether the defendant is insured by the same insurance company for the second claim or even whether the defendant has insurance. The inquirer asks whether A's representation of the second plaintiff constitutes a breach of ethics.

Discussion: When an attorney is retained by a casualty insurance company to represent an insured, the attorney is in fact representing not only the insurance company's interest in defeating the plaintiff's litigation, but also is representing the insured, see ABA Informal Opinions No. 728 and 822 and ABA Formal Opinion 247. It therefore makes no difference that the facts do not indicate whether the same insurance company or a different insurance company or the insured itself is involved in the second law suit.
Canon 4 obligates an attorney to preserve the confidences and secrets of the client. We have previously decided that the term "client" includes former clients. MBA Opinion 75-7. DR 4-101(B)(1), prohibits an attorney from revealing a client's confidences or secrets; DR 4-101(B)(2) proscribes using confidences or secrets to the disadvantage of the client; and DR 4-101(B)(3) proscribes using them to the advantage of another. It is well established that the obligation of an attorney to preserve the confidences and secrets of a client survives the termination of his or her employment. See EC 4-6, and our prior opinions, 75-7 and 76-14.
There are two reasons for protecting the confidentiality of communications between client and attorney. First, an attorney must be prohibited by notions of fundamental fairness from using confidences conveyed to him by his client against his client's interests. Second, Canon 4 seeks to foster an atmosphere of openness and seeks to encourage full disclosure by the client to the attorney in order to enable the attorney to do the best possible job for the client.
While an attorney is not ordinarily precluded from opposing a former client on matters which are not related to the subject matter of the former representation, Canon 4 does preclude an attorney as to substantially related matters. The test as to whether the subsequent matter is substantially related is not whether the attorney 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 subject matter of his subsequent representation ... it is the court's duty to order the attorney disqualified," Emle Industries, Inc. v. Patentex, Inc., 478 F. 2d 562, 571 (2d Cir. 1973). Also see T.C. Theater Corp. v. Warner Bros. Pictures, 113 F. Supp. 265, 268-269 (S.D.N.Y. 1953), Government of India v. Cook Industries, Inc., 422 F. Supp. 1057, 1061 (S.D.N.Y. 1976), and Kneda v. Rush, 550 F. 2d 888, 889 (3d Cir. 1977).

Permission to publish granted by the Board of Delegates, 1977. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.