If a lawyer who has been prosecuting personal injury cases joins a defense firm that is defending those same cases, is the new firm disqualified even if the lawyer takes no part in the cases?

Currency note

The Board of Professional Responsibility vacated this opinion on September 11, 2015 due to changes in the law or rules; Formal Ethics Opinion 89-F-118 later overruled a related categorical rejection of screening and adopted a rebuttable-presumption framework for imputed disqualification. This opinion was also issued in 1981, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Plain-English summary

An attorney shared office space and overhead with two other attorneys with whom he had been in partnership until nine months earlier. He and his former firm primarily represented personal injury and workmen's compensation plaintiffs. He had seven pending cases, some of which he handled for his former partners, and he wanted to join a firm in the same city that served as defense counsel in personal injury and workmen's compensation cases, and which was defending all seven of the cases he had been prosecuting. He stated that after joining the new firm, he would take no part in any of the cases he was then handling that the new firm was defending.

The Board held that this proposed move, if completed, would disqualify the new firm from any further participation in any of the cases in which the attorney had been representing the opposing side before the move. It explained that Disciplinary Rule 4-101 prohibits an attorney from revealing a client's confidence or secret, or using it to the client's disadvantage or for the attorney's or a third person's advantage, without the client's consent. An attorney may not take part in a lawsuit against a former client if the attorney obtained, from the former representation, information that might be detrimental to the former client in the later matter, and if the nature of the former matter made it likely the former client would have revealed confidential facts related to the later litigation while dealing with the attorney. When an attorney is barred on grounds of knowledge actually or presumably acquired from a former representation, the attorney's entire firm is similarly barred.

The Board concluded that even though the attorney would not personally participate, with his new firm, in any of the cases he had previously handled from the other side, the mere potential that he might reveal confidential information to his new partners, and the justifiable apprehension of his former clients that he might do so, would be enough to disqualify the entire new firm. It cited ABA Formal Opinion No. 134 (1935) and several federal appellate decisions applying the same principle.

Common questions

Q: If a lawyer switches sides in ongoing litigation and promises to stay walled off from the cases, is the new firm still disqualified?

A: Yes, under this opinion's original holding. It concludes that "even though the attorney did not participate, with his new firm, in any of the cases which he had previously been handling on the other side, the potentiality of his revealing confidential information to his new partners, and the justifiable apprehension of his former clients that he might do so, would be sufficient to disqualify the new firm."

Q: Does the disqualification apply to the whole firm, or just the individual lawyer?

A: The whole firm. The opinion states "when an attorney is barred from representation on the grounds of knowledge actually or presumably acquired from a former representation, then his entire firm is similarly barred."

Q: What test determines whether the attorney is barred from the later matter in the first place?

A: Whether confidential information from the former representation could be detrimental to the former client. The opinion explains "an attorney may not take part in a lawsuit on the opposite side from a former client, where he has obtained, from his former representation, information which might be detrimental to the former client in the later representation."

Background and rules framework

The opinion applied Disciplinary Rule 4-101 (preservation of client confidences and secrets) of the Tennessee Code of Professional Responsibility, together with the common-law rule that an attorney's disqualification from a former client's adverse matter is imputed to the attorney's entire firm. The modern correlates are Model Rule 1.9 (duties to former clients) and Model Rule 1.10 (imputation of conflicts of interest), noted here as navigational cross-references rather than rules the opinion itself applied.

Citations and references

Rules of Professional Conduct:

• DR 4-101 (preservation of client confidences and secrets), Tennessee Code of Professional Responsibility
• Model Rule 1.9 (duties to former clients) and Model Rule 1.10 (imputation of conflicts of interest), modern correlates

Cases:

• City of Cleveland v. Cleveland Electric Illuminating Co., 440 F. Supp. 193 (N.D. Ohio 1977), aff'd 573 F.2d 1310 (6th Cir. 1978)
• General Electric Co. v. Valeron Corp., 608 F.2d 265 (6th Cir. 1979)
• Novo Terapeutisk v. Baxter Travenol Laboratories, 607 F.2d 186 (7th Cir. 1979)
• Trone v. Smith, 621 F.2d 994 (9th Cir. 1980)

Other opinions cited:

• ABA Formal Opinion No. 134 (1935): imputed disqualification of a firm from a lawyer's former-client conflict

See also

• Tenn. Ethics Op. 89-F-118: Screening Procedures to Avoid Imputed Disqualification
• Tenn. Ethics Op. 81-F-9: A Lawyer Cannot Sue a Former Client on a Related Matter
• Tenn. Ethics Op. 86-F-104: Substantial Relationship Test for Former-Client Conflicts

Source

• Landing page: https://www.tbpr.org/ethic_opinions/81-f-5

Original opinion text

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

81-F-5 - Vacated*

*Vacated by the Board of Professional Responsibility on September 11, 2015 due to changes in the law or rules.

FORMAL ETHICS OPINION 81-F-5

If attorney practicing with firm representing numerous plaintiffs transfers to another firm engaged in defending the same cases, latter firm will be disqualified.

A request has been made for an opinion from an attorney who related the following facts:

He shares office space and overhead expenses with two other attorneys, with whom he had a partnership until nine months ago.

The attorney, as well as the former firm, primarily represents personal injury and workmen's compensation plaintiffs.

The attorney now has seven cases pending, some of which he is handling for his former partners. He desires to join a firm of attorneys in the same city, which practices as defense counsel in personal injury and workmen's compensation cases, and which is defending all seven of the personal injury cases which the attorney has been prosecuting.

The attorney states that, after joining the new firm, he would take no part in any of the cases which he is now handling, and which that firm is defending.

The proposed move by the attorney would, if consummated, disqualify the new firm from any further participation in any of the cases in which the attorney had been representing the opposite side prior to the move.

DR 4-101 prohibits an attorney from revealing a confidence or secret of his client, using such confidence or secret to the disadvantage of the client, or for the advantage of himself or a third person without the client's consent.

An attorney may not take part in a lawsuit on the opposite side from a former client, where he has obtained, from his former representation, information which might be detrimental to the former client in the later representation; and if the nature of the former matter was such that it would be likely for the former client, in dealing with this attorney about that matter, to have revealed confidential facts related to the later litigation, then the attorney may not participate in such later litigation.

When an attorney is barred from representation on the grounds of knowledge actually or presumably acquired from a former representation, then his entire firm is similarly barred.

Even though the attorney did not participate, with his new firm, in any of the cases which he had previously been handling on the other side, the potentiality of his revealing confidential information to his new partners, and the justifiable apprehension of his former clients that he might do so, would be sufficient to disqualify the new firm.

Compare ABA Formal Opinion No. 134 (1935). See City of Cleveland v. Cleveland Electric Illuminating Company, 440 F. Supp. 193, N.C. Ohio (1977); Aff'd 573 F.2d 1310 (CA 6 1977); General Electric Co. v. Valeron Corp., 608 F.2d 265 (CA 6 1979); Novo Terapeutisk v. Baxter Travenol, 607 F.2d 186 (CA 7 1979); Trone v. Smith, 621 F.2d 994 (CA 9 1980).

This 17th day of April, 1981.

ETHICS COMMITTEE:

Randall Burcham

W. H. Lassiter

George E. Morrow

APPROVED AND ADOPTED BY THE BOARD