Ethics Opinon 1974-15

July 23, 1974

SUBJECT: LEGAL ETHICS, UNLAWFUL PRACTICE, CONFLICT OF INTERESTS RE REPRESENTATION OF FORMER CLIENT IN CRIMINAL MATTER WITH OTHER FORMER CLIENT AS COMPLAINING WITNESS

I
QUESTION PRESENTED

May an attorney who has previously represented both "D" and "E" represent "D" in a criminal matter where "E" is the complaining witness?

II
SUMMARY

Yes. The attorney may represent "D" in a criminal matter where "E" is the complaining witness provided there is no possibility of a disclosure or use of any confidential information.

III
STATUTES AND CANONS

Both Rule 5 of the Rules of Professional Conduct of the State Bar of California and Canons 6 and 37 of the Canons of Professional Ethics of the American Bar Association are applicable to situations in which there may arise the possibility of a conflict of interests. Canon 6 prohibits an attorney from accepting employment in matters adversely affecting any interest of a former client with respect to which confidence has been reposed. Canon 37 points out that the duty of a lawyer to preserve his client confidences outlasts the lawyer's employment.

IV
INFORMAL OPINION

Opinion Number 192 of the Committee on Legal Ethics of the Los Angels County Bar Association has concluded that an attorney may accept employment if he does not use or disclose any confidential information.

V
ANALYSIS

It is the writer's opinion that it would be ethical for the attorney to accept the employment if he did not use or disclose any confidential client information.

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 28, 1976 and found that it is consistent with the current state of the law with the exception that Rule 5 of the Rules of Professional Conduct has been supplanted by Rule 4-101 to the same effect. Case law interpreting Rule 4-101 holds that the rule does not prohibit an attorney from accepting employment adverse to a former client if the matter has no relationship to confidential information acquired by reason of or in the course of his employment by a former client. Goldstein v. Lees, 46 Cal.App.3d 614 (1975). Also see Canon 5 of the A.B.A. Code of Professional Responsibility.

 

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.