81-F-5 - Vacated*


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



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.


Randall Burcham
W. H. Lassiter
George E. Morrow