Ethics Opinion

Opinion No. 97-7

July 1997

Summary: When a lawyer who had represented a client leaves a firm, the firm may represent an interest adverse to that client even if the matters are substantially related if no attorney remaining in the firm has confidential information that is material to the matter.

Facts: A lawyer is currently representing H, a new client, in connection with his petition for a reduction in alimony. While preparing for trial, Lawyer discovered that Attorney Y, who was formerly an employee of his firm, represented H's ex-wife in a custody and visitation matter for a few months 10 years ago. Y left the firm nine years ago. Lawyer has also discovered that his firm has a closed file in the custody and visitation matter. Lawyer has not looked at the file, but another attorney in the firm examined it and told Lawyer that the closed file has nothing to do with any change in alimony and contains no information that bears upon the current issue. Attorney Z, the ex-wife's current lawyer, is not aware that Lawyer's firm formerly represented her. Lawyer has made full disclosure of the facts to H, who has consented to Lawyer's representation of him. Lawyer inquires what else he should do in view of these facts.
Discussion: The questions presented are whether Lawyer needs to make disclosure to Z and whether he may continue to represent H if Z's client, H's ex-wife, objects.
The committee has concluded that Lawyer ought to make disclosure of the situation to Z. There is a real issue with respect to Lawyer's ability to represent H and Lawyer ought not conceal it from Z. It is certainly in H's best interest that the issue of Lawyer's ability to represent him be faced at the outset of the case.
As for the second question, the committee has for many years employed the generally used "substantial relationship" test to determine whether a representation against a former client is permissible, although the Supreme Judicial Court in Bays v. Theran, 418 Mass. 685, 691 (1994), repeated that it had not yet decided whether it would follow that test. See the committee's Opinion No. 88-2. But the SJC has approved, although it has not yet formally promulgated, a number of the rules proposed by its own Committee on Rules of Professional Conduct. One of those rules, Proposed Rule 1.10(b), permits a law firm to represent a new client against a former client represented by a formerly associated lawyer unless the matter is substantially related to the subject matter of the prior representation and any remaining lawyer has confidential information that is material to the matter. The Committee on Professional Ethics has taken the same position in the reverse situation where it is the departing lawyer who seeks to represent an adverse interest against a former firm client in a substantially related matter. We advised in Opinion 88-4 that a lawyer who had no confidential information about a firm's client ought to be able to represent an adverse party after she left the firm. Cf. Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751 (2d Cir. 1975). We believe that the same result, which has been incorporated in Proposed Rule 1.10(b), ought to follow in the situation presented in this inquiry.
The issues then are whether the current dispute over reduction of alimony is "substantially related" to the custody and visitation matter and, if it is, whether any lawyer remaining in the firm has confidential information that is material to the matter.
In the committee's view, the reduction of alimony proceeding is "substantially related" to the custody and visitation matter. Both arise out of the same divorce proceeding. Under the substantial relationship test, it is reasonable to infer that Attorney Y, who handled the custody and visitation proceeding for the ex-wife, would have familiarized himself with the whole course of proceedings in preparing to handle that matter and hence learned financial and other confidential information relevant to the current matter from the ex-wife. If Attorney Y were still in Lawyer's firm, the committee would advise that Lawyer's firm could not represent the husband in the reduction of alimony proceeding, at least not without the consent of the ex-wife.
Since Attorney Y left the firm nine years ago, the next issue is whether any attorney currently employed at Lawyer's firm has confidential information of H's ex-wife that is material to the present action, whether from having worked on the custody and visitation matter or from having talked with Attorney Y. If no attorney currently at the firm has any such knowledge, then under the test the committee has adopted--and that Proposed Rule 1.10(b) codifies--Lawyer's firm may represent H against his ex-wife in the current proceeding.
There remains the possibility that the closed case file which remains at Lawyer's firm may contain some confidence or secret of the ex-wife that is germane to the reduction of alimony matter. Another attorney in Lawyer's firm has examined the file and reached the conclusion that there is no disqualifying information in it. If there is disqualifying information in that file, it makes no difference that Lawyer has not seen it. The whole firm would be disqualified anyhow. DR 5-105(D). Lawyer, who will be handling H's matter, should examine the file himself and determine whether it contains disqualifying material. If he finds that the file contains some confidential information that is material to the reduction of alimony action, the firm may not represent the husband in the pending litigation.
If no lawyer still at the firm has confidences or secrets of the ex-wife and if no case file contains confidential information of the ex-wife material to the new lawsuit, then the firm may represent H in the present action, even over the ex-wife's objection. See proposed Model Rule 1.10(b); Novo Terapeutisk Laboratorium A/S v. Baxter Travenol Laboratories, Inc., 607 F.2d 194-197 (7th Cir. 1979) (en banc).

Permission to publish granted by the Board of Delegates on April 16, 1997. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official government status.