OPINION 317
January 1966

CONFLICT OF INTERESTS REPRESENTING WORKMEN'S COMPENSATION CLAIMANT WHO IS ADVERSARY IN DAMAGE SUIT It is unethical for an attorney to accept employment to represent a vehicle driver in his workmen's compensation claim for injuries resulting from a collision when such driver is a defendant in a suit brought by the same attorney on behalf of a personal-injuring plaintiff arising out of the same collision, except by express consent of all concerned after full disclosure.

CONFLICT OF INTEREST REPRESENTATION OF DEFENDANT BY FORMER ASSOCIATE OF PLAINTIFF'S ATTORNEY It is unethical for an attorney, who, when suit was filed, was associated with a law firm representing the plaint)] in a lawsuit, to participate later in the defense of the same suit.

Canon 6.

Question

1. May an attorney, or his law firm, continue in the prosecution of a personal-injury suit against the driver of a motor vehicle and his employer where judgment is obtained in excess of liability insurance policy where the attorney has conferred with Defendant driver and accepted employment in behalf of driver in workmen's compensation claim against same insurance company for alleged injuries arising from collision made basis of first lawsuit ?

2. Law firm P files suit for client on note and foreclosure of Deed of Trust and suit is defended by Attorney D. Attorney D later associates Attorney X to assist in defense of lawsuit. At time suit was filed, Attorney X was associated with law firm P. Attorney X maintains he gained no information about lawsuit before terminating association. Attorney X had access to all of files of law firm P during association. May X ethically associate with D in defense of lawsuit over protest of law firm P and the Plaintiff in the lawsuit?

Opinion

1. In answering the first question, we construe it to mean that the personal-injury suit is the first lawsuit, in point of time of the attorneys employment. We attach no importance to the fact that the same insurance company is involved in both cases, nor to the amount of the judgment in the personal injury case. The controlling factor is that both cases arise out of the same collision, which makes the conflict of interests obvious. It is our opinion that the attorney having already been employed in the personal-injury case, would violate Canon 6 by accepting employment in the workmen's compensation case, except by express consent of all concerned after a full disclosure of the facts. If it be assumed that his employment in the compensation case was first in time, then it is our opinion that the attorney would violate Canon 6 by accepting employment by the plaintiff in the personal- injury suit, except by such consent. We do not pass upon the question of procedural disqualification, which is a matter for the courts and is not within the scope of this committee's functions. We do, however, suggest that lawyers should consider Canon 40 before withdrawing from a case.

2. There is a difference of opinion among the members of this committee on the second question. Looking to the language of the Canons and to prior opinions, and attempting to apply them to the specific inquiry, we find:

Canon 6 provides that: "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." (See also Canon 34.)

The mere fact that an attorney has at some time in the past represented a person does not necessarily make it unethical for the attorney to accept employment which may be adverse to such person. In Opinion 180 (June, 1958) this committee concluded that isolated representations of a party by an attorney without obtaining confidential information does not disqualify the attorney from later suing such party. But discussing the facts of a case with a client, even though the lawyer withdraws before suit is filed, disqualifies the lawyer to accept adverse employment in that case. See Opinion 59 (January, 1953).

Opinions have previously been written in response to several inquiries involving conflicts resulting from a law partner's knowledge or employment. It is unquestioned that partners should not be on opposite sides of the same lawsuit at the same time; and it has been said that "the relations of partners in a law firm are such that neither the firm, nor any member or associate thereof may accept any professional employment which any member of the firm cannot properly accept." See A.B.A. Opinion 72 (May, 1932). Yet troublesome questions continue to arise, not so much with regard to simultaneous representation of conflicting interests by partners as with regard to possible use or disclosure by one partner of information gained by another partner.

Opinion 59 (January, 1953 ) involved a situation where two partners consulted with and accepted employment from two different clients who were involved in the same collision neither partner knowing what the other was doing; and the committee said that, under Canon 6, the firm should withdraw from both sides of the case. Opinion 104 (September, 1954) concluded that it would violate Canon 6 for one member of a law firm to represent the defendant in a suit to modify the child-support provisions of a divorce decree where another partner, prior to joining the firm, had represented the plaintiff in obtaining the divorce decree, even though the plaintiff is represented by independent counsel in the present controversy. Opinion 259 (March, 1963) involved two lawyers who officed together and sometimes divided fees but who were not clearly partners. One lawyer was consulted by a claimant who discussed with him the merits of his case, but the lawyer declined employment. Later the defendant in the case offered to employ the other lawyer. The committee ruled that acceptance of such employment would violate Canon 6 because the relationship between the two lawyers was so close that disqualification of one disqualified the other. In Opinion 313 (January, 1966) this committee has just recently concluded that it is unethical for a lawyer, without the defendant's consent, to continue to represent a plaintiff in a lawsuit after becoming a partner in the law practice with another lawyer who formerly represented the defendant in investigating and handling the claim out of which the lawsuit arose.

In view of the above prior opinions, the majority of this committee is of the opinion that Attorney X would violate Canon 6 by participating in the defense of the lawsuit without the express consent of all concerned even though he gained no actual knowledge of the facts prior to leaving law firm P. (8-1.)