After a firm withdraws because a new partner had represented the opposing party, may the firm meet with the client's substitute counsel to hand off the case?

Plain-English summary

Law Firm "A" was retained to represent a plaintiff in a dispute under a franchise agreement. Before that, Firm "A" had hired a new partner who had previously counseled the person who became the defendant on a proposed trust agreement that was the subject matter of the franchise agreement. After the defendant's new counsel raised a possible conflict, Firm "A" eventually withdrew, about two years later, to avoid imputed knowledge of confidences and any appearance of impropriety, while stating that its new partner had not communicated any confidences or secrets of the defendant. Firm "A" asked whether it could consult with the plaintiff's new counsel about the status, issues, and related matters of the litigation.

The committee identified a dual responsibility. Under DR 4-101(B), the new partner who had been the defendant's former counsel had an obligation not to reveal the defendant's confidences or secrets, and all members of Firm "A" shared that obligation as to both actual and imputed knowledge. At the same time, under DR 2-110, Firm "A" had a responsibility to take reasonable steps to avoid foreseeable prejudice to the rights of its own client, the plaintiff. (The committee also observed that, in most cases, whether a conflict or appearance of conflict exists should be resolvable well before two years into litigation.)

Balancing those duties, the committee concluded that Firm "A" may hold transitional conferences with its former client's new counsel about the status, issues, and additional matters related to the plaintiff's case, while remaining sensitive to and in compliance with Canon 4 as to the secrets or confidences of the defendant.

Currency note

This opinion was issued in 1984, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

Q: After withdrawing over a conflict, can the firm brief the client's new counsel?

A: The opinion concluded the withdrawing firm may hold transitional conferences with substitute counsel about the status and issues of the case.

Q: What limit applies to those conferences?

A: The opinion concluded the firm must remain in compliance with Canon 4 and not breach the confidences or secrets of the opposing party that its new partner had previously represented.

Q: Why did the firm have a duty to its own client here?

A: The opinion concluded that under DR 2-110 the firm had to take reasonable steps to avoid foreseeable prejudice to its client's rights when it withdrew.

Background and rules framework

The opinion interprets the duty to preserve a former client's confidences under CPR DR 4-101(B) and Canon 4 (Model Rule 1.6 and the former-client rule of Model Rule 1.9), together with the withdrawing lawyer's duty under DR 2-110 to avoid foreseeable prejudice to the client (Model Rule 1.16). Imputed knowledge among firm members corresponds to Model Rule 1.10.

Citations and references

Rules of Professional Conduct:

• CPR DR 4-101(B); Canon 4 (Model Rule 1.6; Model Rule 1.9, duties to former clients)
• CPR DR 2-110 (Model Rule 1.16, declining or terminating representation)

See also

• FL Bar Ethics Op. 93-8: Withdrawal Denied With Adverse Joint Clients
• FL Bar Ethics Op. 87-1: Multiple Representation of Codefendants
• FL Bar Ethics Op. 04-2: Restrictions on the Right to Practice in Settlements

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-84-3/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-84-3-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 84-3
October 1, 1984
Advisory ethics opinions are not binding.

A law firm that withdrew from representation of a party because of a new partner's prior representation of the opposing party may hold transitional conferences with substitute counsel, provided that the confidences of the opposing party are not breached.

CPR: DR 2-110; DR 4-101(B)

Vice Chairman Proctor stated the opinion of the committee:

Law Firm "A" was retained to represent a plaintiff in an action involving a dispute under a franchise agreement. Prior to being retained in that action, Law Firm "A" engaged a new partner who had previously provided legal services to the person who became the defendant in the subject litigation, having specifically counseled the defendant on a proposed trust agreement of which the franchise agreement was the subject matter. Because of the previous representation of the defendant by Law Firm "A's" new partner, Law Firm "B" (the defendant's new counsel) informed Law Firm "A" of a possible conflict of interest.

Some two years after the notice of conflict, Law Firm "A" did withdraw from the representation because of concern that there might be imputed knowledge of possible confidences, and in order to avoid the appearance of impropriety. Law Firm "A" stated, however, that its new partner did not communicate any confidences or secrets whatsoever that he may have obtained from the defendant.

Law Firm "A" inquires whether it is proper for it to consult with plaintiff's new counsel concerning the status, issues and additional related matters of this litigation.

The inquiry does not address or explain why two years elapsed prior to Law Firm "A's" decision to withdraw to avoid the possibility of conflict or the appearance of conflict. It seems that in most instances the determination of whether conflict or appearance of conflict exists should be capable of resolution considerably in advance of two years into the litigation.

Law Firm "A" has a dual responsibility in this matter. On the one hand, defendant's former counsel (Law Firm "A's" new partner) has an ethical obligation not to reveal the confidence or secrets of his former client. DR 4-101(B). All members of Law Firm "A" share that obligation, as to actual knowledge and imputed knowledge. On the other hand, Law Firm "A" has a responsibility under DR 2-110 to take reasonable steps to avoid any foreseeable prejudice to the rights of its client, the plaintiff.

Thus, under the circumstances involved, we believe that Law Firm "A" may hold transitional conferences with its former client's new counsel regarding the status, issues and additional matters related to the plaintiff's case, being sensitive to, cognizant of and in compliance with, however, the provisions of Canon 4 with respect to the secrets or confidences of the defendant.