ETHICS OPINION 327-1934

NUMBER 327 1934

Question. Is it professionally proper for an attorney to institute an action for a client on what is apparently a valid claim against another client, when the cause of action and proof thereof involve no question of any communications or confidences whatever between the attorney and the defendant client affecting this particular action, and the attorney has in hand no business of the proposed defendant?

Answer. In answering the question the Committee assumes that there is no contract with the proposed defendant, express or implied, under which the attorney may he called upon to perform future service, even in a disconnected matter (see Opinions 232 and 279) and that the confidences arising from the past relationship will neither prevent the attorney from rendering unhampered service to the plaintiff, nor be apt to appear to the defendant as in danger of violation. On these assumptions, which are fundamental, the Committee is of the opinion that the proposed course of action will not necessarily be improper. The situation, however, is obviously one which demands a cautious approach, The Committee invites attention to the following portions of Canon 6 of the Canons of Professional Ethics of the American Bar Association:

It is the duty of a lawyer at the time of retainer to disclose to the client all the circumstances of his relations to the parties, and any interest in or connection with the controversy, which might influence the client in the selection of counsel. . . . The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.

It thus appears, both that the obligation arising from confidential communications in the former employment outlasts its termination and that the attorney must inform the new client of such continuing obligation. Moreover, in the opinion of the Committee, if the lawyer’s personal relations with the proposed defendant, or his personal acquaintance with the lawyer s habits, inclinations, or psychology gained through his former employment are or have been such that it is unseemly or inherently unjust to either client that he should accept the new employment, he should decline it.