ETHICS OPINION 606-1972 POSSIBLE CONFLICT OF INTEREST; PRESERVATION OF CONFIDENCES AND SECRETS.

NUMBER 606

QUESTION.

 

Is it proper for a lawyer who presently represents a client upon the sale of his home and previously defended him in a divorce action which resulted in a decree of divorce, to accept employment from his present client’s brother to defend him in a proceeding instituted by the latter’s wife for the support of their child, and also to represent him in a possible future divorce action, in which present client may be named co-respondent? The lawyer states that if he accepts the retainer in the non-support proceeding, he would consider himself obligated to accept a retainer in such divorce action.

 

ANSWER.

 

Under the provisions of the Code the inquiring lawyer could not accept a retainer in the. divorce action.

 

In relevant parts, DR 4-101 provides;

“Preservation of Confidences and Secrets of a Client:

 

(B) Except as permitted by DR 4-101(C), a lawyer shall not knowingly:

1. Reveal a confidence or secret of his client.

2. Use a confidence or secret of his client to the disadvantage of the client.

3. Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.”

 

EC 4-5 prohibits the use of information acquired in the course of the representation of a client to the disadvantage of the client; and no employment may be accepted that might require such disclosure.

 

DR 5-105 requires the declination of proffered employment if professional judgment on behalf of a client might be adversely affected.

 

EC 5-14 precludes acceptance of employment that will adversely affect a lawyer’s judgment or dilute his loyalty to a client and EC 5-15 mandates the resolution of doubts in favor of refusal of employment presenting such a potential.

 

The issue cannot be resolved by full disclosure to the present client with a view to his consent to acceptance of the retainer, as the lawyer is in no position to prognosticate developments that might involve EC 4-5 and DR 4-101 or DR 5-105.

 

Inasmuch as the lawyer considers himself obligated to accept a retainer in the divorce action if he acts in the non-support proceeding, it would be improper under the circumstances to accept employment in the latter proceeding.

 

November 16, 1972.