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Opinion #2
Issued 10/17/1979
The Grievance
Commission of the
Board of Overseers of the Bar
Litigation Against Former Client
Preliminary Statement
The controversy
discussed herein was originally brought to the
Legal Ethics Committee of the Maine Bar
Association for an advisory opinion. In light of
the promulgation of the Maine Bar Rules, as
amended by the Supreme Judicial Court effective
May 15, 1979, it was the feeling of that
Committee that such an advisory opinion issued
at this time would be of minimal force and
effect, given the changes in the Code of
Responsibility (Rule 3) adopted by the Court and
the jurisdiction of the Grievance Commission
created by Rule 7, extending to both advisory
and disciplinary functions. This matter is,
therefore, being considered as an advisory
opinion by the Grievance Commission.
An important
observation should be made respecting the
standards to be applied by this Commission in
evaluating lawyer conduct. Rule 3 appears to
this Commission to establish, in a manner
similar to the Disciplinary Rules under the
previously existing Maine Bar Association Code
of Responsibility, minimal standards of conduct,
violation of which calls for disciplinary
action. The former Code also contained “Ethical
Considerations” which provided guidelines for
higher aspirations of the Bar for the conduct of
attorneys. While these Ethical Considerations
were not formally adopted as part of Rule 3, we
will continue to view them, along with Ethics
Committee opinions and other materials based on
former canons of ethics, as aids to construction
and interpretation of the present Code as set
forth in Rule 3.
Facts
Lawyer A
represented a client in 1958 in connection with
the acquisition of certain real estate which is
the subject of present litigation. In 197071,
Lawyer A again was called upon by the client to
provide legal services in connection with the
development and licensing of this property as a
trailer park. The client claims that a central
issue in seeking approvals of various agencies
for the trailer park operation was a challenge
to the adequacy of the septic system and that
various contacts were made by Lawyer A with
State Agencies, consultants, and the client with
respect to the septic system problems. Lawyer A
and his firm furnished materials to the
Committee which negate any substantive knowledge
or effort on the part of Lawyer A with respect
to the septic system; these materials tend to
show the legal services being limited to
procedural assistance and zoning advice. The
representation terminated prior to the approval
of the trailer park because of a dispute over
legal fees.
In November 1978,
three tenants of the now functioning trailer
park brought suit against Lawyer A’s former
client, alleging entitlement to compensatory and
punitive damages under a theory of unfair trade
practices based upon malfunctioning of
Defendant’s sewage disposal system. All tenants
are represented by Lawyer A’s law firm. The
former client objects to this new
representation, claiming that knowledge derived
from Lawyer A’s prior representation on a
confidential basis now is being used against him
in connection with the pending suits. He
requests this committee’s opinion as to the
propriety of Lawyer A’s present representation
of the Plaintiff tenants. Lawyer A’s firm
resists withdrawal from its present
representation asserting that the present
malfunctioning of the sewage system is unrelated
to the scope of representation provided to the
client during the licensing and approval
proceedings, and that nothing disclosed at that
time has any bearing on the instant suit.
Discussion
While it is clear
that ethical considerations normally preclude a
lawyer from suing an existing client on
behalf of another, it is likewise clear that the
mere existence of a now‑terminated prior
attorney‑client relationship does not disable an
attorney from representing interests generally
antagonistic to the former client. Any such
disability must stem, if at all, from the duty
of a lawyer to preserve the confidences and
secrets of a client, even though the
relationship has terminated; and the risk of
apparent or actual disclosure of confidences
increases as the degree of identity of subject
matter in the two representations increases.
The obligation of
a lawyer to preserve the confidences of his
client continues after the termination of his
employment. See Reporter’s Note to Rule 3.6(1).
Under the facts presented here, there is no
exemption from the mandate of Rule 3.6(1)(i)
which prohibits a lawyer from knowingly
revealing a confidence or secret of the client
or from using the same to his client’s
disadvantage.
If the subject
matter of the present suits in fact encompasses
the subject matter of the former employment, or
if confidential information derived from the
former employment may be involved in the new
representation, neither Lawyer A nor his firm
may represent these Plaintiffs without the
former client’s written consent. Rule 3.4(e) and
(k). On the other hand, if there is no identity
of subject matter and no possibility of use of
confidential information, then no impediment
exists to Lawyer A’s firm continuing the new
representation. There is no way for this
Commission to determine whether or not
confidences are now being used against the
former client, or may be used against the former
client, or whether there is an identity of
subject matter in the two representations. In
the context of an advisory opinion, this
Commission cannot resolve issues of disputed
fact; were the issue presented as a grievance,
factual issues would be determined after
hearing.
This inability to
resolve a factual dispute, while rendering
impossible any present judgment as to violation
of the minimal standard of conduct set forth in
Rule 3, does not end our consideration, however.
We think it important to refer to the fabric
from which our present Code was derived,
particularly since the present facts raise the
unfortunate (though recognized‑see Maine Bar
Rule 3.6(1)(3)) circumstance that in order to
prove or disprove the applicability of Rule
3.4(e), it may become necessary to invade the
very confidentiality of the prior client’s
disclosures that the Rules are designed to
protect.
A review of
pertinent authorities persuades us that it would
be the better practice for Lawyer A’s firm to
withdraw from the present representation.
Ethical considerations, as well as Rule 3.4(e),
suggest avoidance of representation where there
may be a possible violation of
confidence. ABA Informal Opinion, No. 85. See
also Rule 3.4(e). Cf, ABA Opinion 165 (1936):
An attorney must
not accept professional employment against a
client or a former client which will, or even
may, require him to use confidential
information obtained by the attorney in the
course of his professional relations with such
client regarding the subject matter of the
employment . . .
Moreover,
representations which raise an appearance
of a conflict of interest should be avoided:
“The matter is not
to be determined by such facts as that the
original services were rendered on the
employment of a lawyer, or that the services may
have had no particular bearing upon the phases
of the litigation contemplated to be conducted
on behalf of the new employer, or that it is
probable that no information was required in the
first employment that might prove useful in the
subsequent employment. Irrespective of any
actual detriment, the first client might
naturally feel that he in some way had been
wronged, when confronted by a final decree
obtained by a lawyer employed in his behalf in
the earlier part of the same litigation. To
maintain confidence in the Bar, it is necessary
not only to avoid actual wrongdoing, but an
appearance of the wrongdoing.” Drinker (Legal
Ethics) Page 115, Quoting New York County Bar
Opinion 202. Cf., Canon 9.
We would note that
Rule 3.5(c)(7) authorizes withdrawal from a case
where continued employment is likely to result
in violation of the rules. If it is 'likely'
that the identity of the subject matter or the
risk of use of confidential information
proscribed by Rule 3.4(e) would be found to
exist, then Rule 3.5(c)(7) would permit Lawyer A
to resign his present representation in the face
of objection by his former client.
The Commission
would also cite Rule 3.2(f)(4) as bearing on
this problem. That Rule prohibits a lawyer from
engaging in conduct that is “prejudicial to the
administration of justice.” For Lawyer A or his
firm to continue the present representation of
the plaintiffs may well prejudice the
administration of justice in two respects:
1. By fostering
the erosion of public confidence in the
confidentiality of lawyer communications, as
discussed above, and
2. By risking the
necessity to withdraw, after further proceedings
and in the light of deeper involvement in the
case, thus placing greater burdens upon
substitute counsel and the client.
Thus, while we
cannot say, without resolution of disputed fact
issues, that the conduct of Lawyer A and his
firm falls below the standard enunciated in Rule
3, we do feel that the spirit of the ethical
considerations which have long guided our legal
profession strongly suggest that withdrawal is
the most appropriate course for Lawyer A’s firm
to take. [Back
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