Ethics Opinion 1970-2

March 18, 1970

SUBJECT: CONFLICT OF INTEREST

I
QUESTION PRESENTED

Attorney A represented the Company for a number of years until discharged. Three weeks later, the Company, represented by Attorney B filed suit against the defendant. Defendant retained Attorney A within a week and an Answer was filed. Attorney A claims he had no knowledge whatsoever of the subject matter of the litigation prior to being retained by Defendant. What is the propriety of such employment?

II
SUMMARY

There are two objections to such conduct:

1. Such employment may require the use of confidential information.

2. Gives the appearance of professional impropriety.

It is, therefore, the opinion of this Committee that the attorney must not accept such employment.

III
RULES AND ETHICAL CONSIDERATIONS

Rule 5 of the Rules of Professional Conduct of the State Bar of California provides that:

"A member of the State Bar shall not accept employment adverse to a client or former client, without the consent of the client or former client, relating to a matter in reference to which he has obtained confidential information by reason of or in the course of his employment by such client or former client."

As stated in Ethical Consideration 4-4 of the A.B.A. Code of Professional Responsibility:

"The attorney-client privilege is more limited than the ethical obligation of a lawyer to guard the confidence and secrets of his client. This ethical precept, unlike the evidentiary privilege, exists without regard to the nature or source of the information or the fact that others share the knowledge."


IV
OPINIONS, CASES AND CANONS

An attorney must not accept professional employment against a former client which will, or even MAY require him to use confidential information obtained in the course of his professional relations with the client. A.B.A. Formal Opinion 165; A.B.A. Informal Opinion 885; Galbraith v. State Bar, 218 Cal. 329, 23 P.2d 291 (1933); see also Anno: 51 ALR 307; and Anno: 52 ALR.2d 1243. Also see Canon 9 of the A.B.A. Code of Professional Responsibility.

V
ANALYSIS

Acceptance of such professional employment against a former client may require the attorney to use confidential information acquired in the course of professional relations with the client. The situation presented has an unmistakable aura of professional impropriety and therefore is in direct conflict with Canon 9.

In reaching this conclusion we express the view that insofar as the public confidence in the honor and integrity of the Bar is concerned, the appearance of professional impropriety is as damaging as unethical behavior per se.

This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.

EDITOR'S NOTE: The Committee reviewed this opinion on October 8, 1976 and found the conclusion to be valid under present law. Note that effective 1/1/75, California Rule 5 is 4-101; it now requires that the client's consent be in writing.

 

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.