ETHICS OPINION 701-1994 CONFLICT OF INTEREST; PROTECTION OF CLIENT SECRETS

NEW YORK COUNTY LAWYER’S ASSOCIATION

Committee on Professional Ethics

QUESTION NO. 701

TOPIC: CONFLICT OF INTEREST; PROTECTION OF CLIENT SECRETS

DIGEST: A LAWYER MAY UNDERTAKE A REPRESEN TATION ADVERSE TO A FORMER CLIENT’S SPOUSE WHERE THE PRIOR REPRESENTATI0N HAS NO SUBSTANTIAL RELATION-SHIP TO THE CURRENT SUIT AND INFORMATION DISADVANTAGEOUS TO THE FORMER CLIENT IS UNLIKELY TO BE USED.

CODE: DR 4-101(C); DR 5-108 (A); EC 4-5

QUESTION:

An attorney provided legal advice to H when H was the subject of a criminal inquiry by a governmental agency. Present at these consultations was H’s wife, W. During those consultations, financial information about H may have been revealed. Subsequently, W determined to bring a lawsuit arising out of an injury that occurred in a horseback riding accident prior to her marriage to H. May the attorney who formerly represented H now represent the defendant in the suit brought by W arising out of the accident?

OPINION:

An attorney who has formerly represented a client may not:

Thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client.

Use any confidences or secrets of the former client except as permitted by DR 4-101(C) or when the confidence or secret has become generally known.

DR 5-108(A). In the present case, the attorney must determine whether a) the horseback riding accident is substantially related to the criminal investigation; and b) whether any confidences or secrets imparted by H would be used in connection with the litigation arising out of the horseback riding accident.

The horseback riding accident and the criminal investigation are not “substantially related” within the meaning of DR 5-108(A)(1). The remaining question the attorney must assess is whether there is a risk that confidences or secrets of H would be disclosed or utilized in the new representation. See DR 5-108(A)(2); EC 4-5 (a lawyer “should not use information acquired in the course of the representation to the disadvantage of the client”). If such information would be utilized, then the representation should not be undertaken. For example, if the information disclosed in the prior representation is relevant or material to the strategy or settlement of the case, then the attorney may not accept the new representation.

CONCLUSION:

An attorney is not disqualified from a representation adverse to the spouse of a former client where the current matter has no substantial relationship to the earlier representation and information disadvantageous to the former client is unlikely to be used.

June 17, 1994

Whether the attorney may use any confidences or secrets imparted by W during the prior consultations would also be a consideration if W was deemed to have been the attorney’s client. Although H’s marriage to W does not place him in her shoes, there are circumstances in which the relationship between the attorney and a third party may be such that an attorney-client relationship is formed. In Westinghouse Electric Corp. v. Kerr-McGee Corp., 580 F.2d 1311 (7th Cir.), cert. denied, 439 U.S. 955 (1978), the court observed that an attorney/client relationship could exist based on: a) the client’s belief that he or she is consulting a lawyer for the purpose of obtaining legal advice, or b) the nature of the work performed and the circumstances under which confidential information is disclosed. Id. at 1319-20.