Can a lawyer take a case against people who were clients of the lawyer's former firm, when the lawyer never worked on their matter or learned their confidences?

Currency note

This opinion was issued in 1981, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. It interprets former Rule 4-101 (duty to a former client) and ABA Canon 9 (appearance of impropriety), areas now addressed by Model Rules 1.9 and 1.10 and California Rules 1.9 and 1.10. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, case, or requirement mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The committee addressed Attorney B, who had associated with Attorney A for about a year. Before that association, Attorney A had drafted a joint venture agreement for two men and held some of their funds in trust; during the association Attorney B did no work on that file and had no proceedings or discussions involving the two clients. After leaving and forming a new partnership, Attorney B was asked to represent a client with a potential claim against the two men, who objected to the representation.

On former Rule 4-101, the committee concluded the two clients' confidences were not to be imputed to Attorney B. It accepted the presumption that information flows freely among a firm's members but, quoting Silver Chrysler Plymouth, Inc. v. Chrysler Motor Corp., rejected the idea that a lawyer absorbs all of a firm's client confidences by "legal osmosis," and noted that California courts do not treat the presumption as conclusive absent evidence of a substantial relationship between the new litigation and the lawyer's prior work. The committee concluded that to breach former Rule 4-101 a lawyer must have obtained confidential information about the former client that is involved in the new claim, and that a lawyer should not take such a case unless able to testify that no confidences came to the lawyer or that any information obtained has no substantial relationship to the new litigation; here the presumption was overcome.

On ABA Canon 9 (which the committee noted is not binding in California), the committee concluded the appearance-of-impropriety concern did not bar the representation. It discussed Younger v. Superior Court and related criminal cases requiring the highest integrity and appearance of impartiality, but observed that none involved a client's right to freely select counsel. Balancing that right against avoiding imagined improprieties, the committee concluded the right of free selection should prevail and that Canon 9 should apply only where public confidence in the integrity of the profession would clearly be shaken, as when a lawyer switches sides in a related case. Because Attorney B had only physical access to the file and nothing suggested divided loyalty or side-switching, the committee found no breach of Canon 9.

Common questions

Q: Can a lawyer sue people who were clients of a firm the lawyer used to work at?

A: Yes, where the lawyer obtained no confidential information about them and did no work on their matter. The committee concluded the presumption that firm members share client information can be rebutted on those facts.

Q: What must the lawyer be able to show before taking the case?

A: The committee said the lawyer should not take the case unless able, if called upon, to testify that no confidences or secrets came to the lawyer, or that any information obtained has no substantial relationship to the new litigation.

Q: Does the appearance of impropriety bar the representation?

A: Not here. The committee, noting Canon 9 is not binding in California, concluded it applies only where public confidence in the profession's integrity would clearly be shaken, such as side-switching in a related case, which these facts did not show.

Q: How is this different from the public-defender situation in Opinion 1980-52?

A: The committee distinguished 1980-52, explaining that there it was reasonably foreseeable a former client's confidences could be used, whereas here Attorney B never discussed or worked on the two clients' matter, so no such foreseeability existed.

Background and rules framework

The opinion interprets former Rule 4-101 of the California Rules of Professional Conduct, which barred accepting employment adverse to a former client on a matter as to which the lawyer obtained confidential information, and ABA Canon 9 (avoiding the appearance of impropriety), which the committee noted is not binding in California. The duties to former clients and the rebuttable imputation of conflicts within a firm are now addressed by Model Rules 1.9 and 1.10 and their California counterparts.

Citations and references

Rules of Professional Conduct:

• Former California Rule 4-101 (employment adverse to a former client)
• ABA Code of Professional Responsibility, Canon 9 (noted as not binding in California)

Cases:

• Silver Chrysler Plymouth, Inc. v. Chrysler Motor Corp. (2d Cir. 1975) 518 F.2d 751
• Laskey Bros. of W.Va., Inc. v. Warner Bros. (2d Cir. 1955) 224 F.2d 824
• Kraus v. Davis (1970) 6 Cal.App.3d 404 [85 Cal. Rptr. 846]
• In re Charles L. (1976) 63 Cal.App.3d 760 [132 Cal. Rptr. 840]
• Younger v. Superior Court (1978) 77 Cal.App.3d 892 [144 Cal. Rptr. 34]
• People v. Superior Court (Greer) (1977) 19 Cal.3d 255 [137 Cal. Rptr. 476]
• Jeffry v. Pounds (1977) 67 Cal.App.3d 6 [136 Cal. Rptr. 373]
• Trone v. Smith (9th Cir. 1980) 621 F.2d 994
• Gas-A-Tron of Arizona v. Union Oil (9th Cir. 1976) 534 F.2d 1322

Other opinions cited:

• State Bar Committee on Professional Responsibility and Conduct Opinion No. 1980-52 (distinguished)

See also

• CA Ethics Op. 1980-52: Public Defender Facing a Former Client as a Witness
• CA Ethics Op. 1979-49: Prosecutor Contact and Co-Defendant Conflicts

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original opinion: https://www.calbar.org/ethics/Opinions/1981-57.htm

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 1981-57

ISSUE:

May an attorney ethically represent a client in a claim against clients of a former legal partner?

DIGEST:

An attorney may ethically represent a client in a claim against clients of a former legal associate when that legal association was formed after the representation of the former clients and there is no evidence that any confidence or secret of the former clients was discussed or revealed by the former legal associate.

AUTHORITIES INTERPRETED:

Rule 4-101 of the Rules of Professional Conduct of the State Bar.

DISCUSSION

We have been asked whether an attorney may ethically represent a client in a claim against two clients of that attorney's former associate. The sequence of material events is:

1) Two men contact attorney A to draft, among other things, a joint venture agreement. The agreement is drafted and further representation of the two is limited to the receipt of some monies which are deposited and maintained on behalf of the clients in a trust account.

2) Thereafter Attorney B associates with Attorney A and remains with him for about a year. During that association, Attorney B did no work on the joint venture file, and there were no proceedings or discussion involving the two clients or their joint venture.

3) After leaving the association with Attorney A, Attorney B formed another partnership. He has now been asked to represent a client who has a potential claim relating to the joint venture against the two men who formed the joint venture.

4) The two men object to Attorney B's representation of their adversary.

A. Rule 4-101 of the Rules of Professional Conduct.

In relevant part, rule 4-101 of the Rules of Professional Conduct provides:

".. a member of the State Bar shall not accept employment adverse to a ... former client ... relating to a matter in reference to which he has obtained confidential information by reason of or in the course of his employment by such o.. former client."

The facts we are given make it clear Attorney B obtained no confidential information regarding the two men during his association with Attorney A. Are the clients' confidences and secrets revealed to Attorney A to be imputed to Attorney B so as to bring him within the prohibition of rule 4-101 of the Rules of Professional Conduct? We think not.

We agree with the rationale which supports the presumption that there is a free flow of information between members and associates of a legal firm. (See Laskey Bros. of W.Va., Inc. v. Warner Bros. (2nd Cir. 1955) 224 F.2d 824.) But this presumption should not be applied to reach illogical conclusions. In Silver Chrysler Plymouth, Inc. v. Chrysler Mot. Corporation (2nd Cir. 1975) 518 F.2d 751, 753, the court, in declining to disqualify an attorney whose prior involvement with the party he was now suing was far greater than that of the attorney in this situation, observed:

" .... it would be absurd to conclude that immediately upon entry on duty [attorneys] become the recipients of knowledge as to the names of all the firm's clients, the contents of all files relating to such clients, and all confidential disclosures by client[s] . .. to any, lawyer in the firm. Obviously such legal osmosis does not occur." 1

In California the courts have not held that the presumption of free sharing of information among members of a firm or partnership is conclusive in the absence of evidence of a substantial relationship between the pending litigation and the matters upon which the attorney worked during the prior association. (See, e.g., Kraus v. Davis (1970) 6 Cal.App.3d 404 [85 Cal. Rptr. 846]; In re Charles L. (1976) 63 Cal. App.3d 760 [132 Cal. Rptr.840]. In a similar vein, see Novo Terapeutisk, Etc. v. Baxter (7th Cir. 1979) 607 F.2d 186.) We agree with this practical approach to the application of the rules.

To breach rule 4-101 of the Rules of Professional Conduct, an attorney must have obtained, directly or indirectly, confidential information or secrets about his or her former client which are involved, directly or indirectly, in the claim being pursued against that client. As noted above, there may be a presumption of free flow of information between members anti associates of a legal firm. Accordingly, an attorney, approached by a client with a claim against another client of a firm with which the attorney was previously associated, should not take the case unless he or she would be able, if called upon to do so, to testify that no confidences or secrets came to him or her or that any information he or she did obtain has no substantial relationship to the new litigation. In these events, the presumption would be overcome and rule 4-101 would not be an ethical bar to accepting the new case.

B. Canon 9 of the American Bar Association Code of Professional Responsibility.

Canon 9 of the American Bar Association Code of Professional Responsibility provides: "A lawyer should avoid even the appearance of professional impropriety."

Even if Attorney B commits no breach of rule 4-101 of the Rules of Professional Conduct by accepting the client who now challenges the joint venture agreement, does canon 9 of the American Bar Association Code of Professional Responsibility preclude his or her representation? Again, we think not.

In Younger v. Superior Court (1978) 77 Cal.App. 3d 892 [144 Cal. Rptr. 34], the Court of Appeal for the Second Appellate District upheld, for appearances sake, a recusal order of the entire Los Angeles District Attorney's Office in cases against clients of a firm after one member of the firm had resigned to become the third ranking district attorney with responsibilities in formulating prosecutorial policy and in evaluating the performance of attorneys, some of whom would have presented cases against clients of his former firm. The appellate court found the attorney's position "could possibly affect the prosecution" of those clients and that persons "of a paranoid and conspiratorial turn of mind" would never be satisfied that there had been no impropriety. Younger v. Superior Court, supra, followed a number of cases in which California courts dealt with the need for the "highest degree of integrity and impartiality, and with the appearance thereof" in the criminal justice system. (People v. Municipal Court (Wolfe) (1977) 69 Cal. App.3d 714 [138 Cal. Rptr. 235], People v. Superior Court (Greer) (1977) 19 Cal.3d 255 [137 Cal. Rptr. 476], People v. Rhodes (1974) 12 Cal.3d 180 [115 Cal. Rptr. 235].)

None of these cases, however, involved the right of individual clients freely to select the attorneys they wish to represent them. (See, e.g., Silver Chrysler Plymouth, Inc., supra, 518 F.2d 751.) This critical and significant right, when balanced against the desirability of the profession to remain above suspicion of imagined improprieties, even by those "of a paranoid and conspiratorial turn of mind," leaves us to conclude that, in this case, the right of free selection should prevail and that the concept behind canon 9 of the American Bar Association Code of Professional Responsibility (which is not binding in California) should be applied in situations in which public confidence in the integrity of the legal profession would clearly be shaken by the attorney's representation of the new client. Courts have found these conditions do exist when an attorney represents a personal injury client's wife in a dissolution of marriage suit against the client without the client's consent (Jeffry v. Pounds (1977) 67 Cal. App.3d 6 [136 Cal. Rprt. 373]) or when an attorney changes sides in a factually related case (Trone v. Smith (9th Cir. 1980) 621 F.2d 994).

We do not see that situation in the set of facts we have been given. In essence, Attorney B once had physical access to the file involving the two clients in a joint venture, and nothing more. In a similar setting, the court of appeals reversed an order of disqualification in Gas-A-Tron of Arizona v. Union Oil (9th Cir. 1976) 534 F.2d 1322. There is nothing in the facts presented here suggesting a division of loyalty or side switching.2 Accordingly, we find no breach of canon 9 of the American Bar Association Code of Professional Responsibility.

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.

1 We recognize that Silver Chrysler Plymouth, supra, was overruled in Armstrong v. McA1pin (2nd Cir. 1980) 625 F.2d 433 on an unrelated issue.

2 In contrast to this Committee's opinion No. 1980-52, it is neither reasonably foreseeable, nor would it reasonably appear to the two clients, that confidences or secrets of those clients may be used by Attorney B. At no time did Attorney B have discussions involving the two clients or their joint venture nor did Attorney B do any work on the joint venture file. Presumably the file remains in the possession of Attorney A. This is in sharp contrast to the situation in opinion No. 1980-52, wherein the first client would be aware of prior representation by the same governmental entity which the client knows had a file relating to the client's case.