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OBA Ethics Counsel

Ethics Opinion No. 154

Adopted November 14, 1951

QUERY

Can a lawyer represent a former coemployee injured while the lawyer was a layman and employed as a Claim Agent and handled the investigation and administrative duties connected with a payment of temporary, total disability, the question of permanent partial disability never having been determined or settled?

ANSWER

The question presented raises the proposition as to whether an attorney may represent a claimant against both the attorney's and claimant's former employer, when the attorney, prior to admission to the bar, as a lay claim adjuster represented the employer against the claimant in one phase of the same litigation.

The Canons of Professional Ethics of the American Bar Association, by official adoption, have become the Canons of Ethics for the Bar of this state. Canon 6 is as follows:

"Adverse Influences and Conflicting Interests: It is the duty of a lawyer at the time of retainer to disclose to the client all the circumstances of his relations to the parties, and any interest in or connection with the controversy, which might influence the client in the selection of counsel.

"It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.

"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."

It has long been determined that an attorney owes to his client an undivided allegiance, and an attorney is forbidden, after severing his relationship with a former client, to do anything which will injuriously affect his former client in any matter in which he formerly represented him, or at any time to use against his former client knowledge or information acquired by reason of the previous relationship.1 The Supreme Court of California in construing a local rule comparable to Canon 6 has held that a reasonable construction "suggests that the subsequent representation of another against a former client is forbidden not merely when the attorney will be called upon to use confidential information obtained in the course of his former employment, but in every case when, by reason of such subsequent employment, he may be called upon to use such confidential information."2 The Minnesota Supreme Court, in a case where an attorney employed by a railroad company as a claim adjuster investigated the circumstances of an accident and reported the facts to the company and, after his relations with the company had been severed attempted to bring an action against the company in behalf of the person injured, held: "An attorney, no matter in what capacity he has acted, should never take a case against one who employed him to investigate and report the facts in the particular case. By making such an investigation, the attorney gains information which should be imparted only to the person by whom he was then employed. To make use of the information for the benefit of his employer's adversary is manifestly improper. The impropriety is none the less because the employment has been terminated. Pierce v. Palmer, 31 R.I. 432, 77 A. 201, Ann.Cas.1912B, 181, and note page 212; Bowman v. Bowman, 153 Ind. 498, 55 N.E. 422; 6 C.J. 590; 2 R.C.L. 974. The facts set forth in the answer, if not contradicted or explained, would justify the court, on proper application, in staying the further prosecution of the action until the plaintiff is represented by another attorney and in refusing to permit (counsel) to take any part in the prosecution or trial of the case."3

The Oklahoma Supreme Court has said in syllabus, "An attorney at law, after representing his client and appearing for him upon the trial of a cause pending in a trial court of original jurisdiction, may not thereafter accept employment from his client's adversary and appear for and represent said adversary in the trial of an action subsequently instituted by him against the former client upon the same controversies as were involved in the former action wherein the attorney had represented and appeared for his former client, unless such former client should first consent thereto, after being fully informed and advised in the matter." In the body of the opinion, the court, after finding that no corrupt motive existed, said: "However, the absence of a corrupt motive cannot be held to justify or excuse the misconduct in representing and appearing in court for his client, Ponder, and thereafter accepting employment from his client's adversary and representing and appearing for him in court in a cause involving the same controversies as were theretofore involved in the former action when he represented Ponder."4

It will be noted that all previous references have indicated that the relationship of attorney and client existed at the time the original phase of the litigation took place. Since the propounded question presents the problem of relationship only of employer and employee, the employee not then having been admitted to practice at the bar, such authorities are not directly in point but the Committee is of the opinion that the relationship of employer and employee raises so nearly the same responsibilities of confidence and so nearly the same likelihood of acquisition of confidential information that the authorities and the provisions of Canon 6 would be similarly applicable when that employee subsequently becomes a member of the bar and thereafter attempts to represent the same claimant, part of whose claim he investigated and settled on behalf of his employer in the former phase of the litigation. We are therefore of the opinion that the lawyer would be acting unprofessionally in representing such a client in his subsequent action against the former employer. There is an apparent lack of direct authority on the question. However, the Utah Supreme Court, in a case wherein an attorney before being admitted to practice before the bar prepared a note for another, the note being left with him for delivery to the owner, and after his admission to the bar, while representing another client, attached and sold the note left in his possession to such other client, held the transaction to be against "public policy" which forbids an attorney to represent conflicting interests.5

The Committee is informed of numerous steps which the attorney has taken to avoid such representation without consent of the former employer and under the circumstances could not in any manner even suspect a corrupt motive on the part of the attorney, particularly in view of the fact that some 23 years have elapsed since the former phase of the litigation was completed. Nevertheless, as has previously been indicated, the absence of a corrupt motive cannot be held to justify or excuse the representation of such conflicting interests,6 in the absence of consent thereto by the former employer.

The question propounded is therefore answered in the negative.

1 Wutchumna Water Company v. Bailey, 1932, 216 Cal. 564, 15 P.2d 505.

2 Sheffield v. State Bar of California, 1943, 22 Cal.2d 627, 140 P.2d 376.

3 In Hovel v. Minneapolis & St. L. Ry. Co., 1926, 165 Minn. 449, 206 N.W. 710.

4 In re Jeter, 1933, 163 Okl. 27, 20 P.2d 886.

5 Malia v. Giles, 1941, 100 Utah 562, 114 P.2d 208.

6 In re Jeter, 1933, 163 Okl. 27, 20 P.2d 886.