ETHICS OPINION 202-1922

ETHICS OPINION 202

NUMBER 202 1922

Question. A and B are patent lawyers. From 1911 to 1915 they were associated in a partnership which was limited by its terms to practice before the United States Patent Office and expressly excluded work before the United States Courts, the latter class of work being under the articles exclusively the privilege of A. B had no interest under the articles in the work before the courts, and in practice participated therein only as he was requested from time to time by A to take some definite part therein, principally the faking of depositions, for which he was paid by A on a per diem basis.

In 1912a suit for patent infringement was filed in court by the C company against the D company, in which A represented the D company. B was, of course, familiar to a greater or lesser extent with the details of the controversy due to his association with A and to the fact that he handled the work of the D company before the Patent Office, but had no interest in the suit and participated therein only to the extent of taking a series of depositions relating to a definite part of the controversy, at the request of A, for which he was paid by A on a per diem basis.

In 1915 B withdrew from the partnership and engaged individually in the practice of patent law. Subsequent to B’s withdrawal from the partnership the Court of Appeals held in favor of the C company and ordered an accounting which is now in its final stages. The accounting now awaits the master’s report and will then go before the District Court for approval of the master’s findings.

The C company was represented in this suit by attorney E, who has recently retired from practice, and B has taken over all of his practice, including his work for the C company, included in the unfinished work of the C company is the accounting between the C company and the D company, For approximately two years prior to the retirement of E, B had represented the C company in a part of its work, the work being divided between B and E. No business connection of any kind existed between B and E prior to the latter’s retirement. The C company desires B to take over this accounting and complete the same on its behalf. So far as B is aware he acquired no information due to his limited participation in the early stages of the suit which could, at this stage of the accounting, be used in any way to the disadvantage of the D company. B’s name does not appear in the record of the suit except in connection with the depositions above mentioned.

In the opinion of the Committee can B properly represent the C company in the unfinished part of the accounting?

Answer. In the opinion of the Committee the rendition of professional services by an attorney to one party of a litigation, which thus establishes necessarily a relation of trust and confidence, precludes the acceptance of employment by such attorney in any subsequent phase of the same litigation from the adverse party. A client is encouraged to make full disclosure of all facts to his attorney and he should be justified in feeling that his attorney will never be found helping the other side of the litigation. The matter is not to be determined by such facts as, that the original services were rendered on the employment of another lawyer, or that the services may have had no particular bearing upon the phase of the litigation contemplated to be conducted in behalf of the new employer, or that it is probable that no information was acquired 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 had in some way been wronged when confronted by a final decree obtained by a lawyer employed in his behalf in an earlier part of the same litigation. To maintain public confidence in the Bar it is necessary not only to avoid actual wrong doing but an appearance of wrong doing.