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OBA Ethics Counsel

Ethics Opinion No. 91

Adopted September 27, 1935

The Board is in receipt of the following inquiry:

"K, an attorney at law, represented the § corporation as its attorney in two suits, each of which was tried before a Justice of the Peace and was appealed to the District Court where both suits are now pending. K has no regular retainer from S. At the time of his employment in the two suits mentioned, K represented a liability insurance company which then wrote such insurance for the § corporation and because of that relationship he was employed in the two cases above mentioned although his employment there came from the § company and not from the insurance company. Since the § company has changed its insurance carrier it has given no legal business to K except that he still represents the § company in the two appealed cases.

B, desiring to bring a damage suit against the § company, offered K employment as his attorney in the matter.

Is K at liberty to accept that employment?"

In response:

Rule Eight of the Rules of Professional Conduct of the State Bar provides:

"The obligation to represent the client with undivided fidelity and not 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."

Assuming that K has not received information with reference to any of the facts involved in B's proposed lawsuit as a result of his employment in the two previous lawsuits, included in the "Facts" being any possible conditions under which § conducts his business which may remotely affect B's proposed lawsuit, there is no rule of professional conduct prohibiting the acceptance of the employment from "B" by K.

It must be borne in mind, however, that if K has obtained knowledge of any facts affecting B's proposed lawsuit as a result of his employment in the two previous suits, even though such knowledge could be acquired independently of the employment, the acceptance of employment from "B" would be improper.