State Bar of Montana

Ethics Opinion
870723

QUESTION PRESENTED: Is an attorney in a law firm disqualified from representing a client who was the opposing party in a previous case handled by another member of the law firm?

ANSWER: No.

ANALYSIS: Imputed disqualification presumptions are rebuttable presumptions, which would require an attorney to show that there is no access to confidential information. The approved methods for meeting this burden of proof are affidavits and the submission of time records from a law firm which would show the attorney did not have exposure to the restricted confidential information. The leading case is Silver Chrysler Plymouth Inc. v. Chrysler Motors Corp., 518 F.2d 751, 756-7 (2d Cir. 1975) in which the court stated:

. . . but there is reason to differentiate for disqualification purposes between lawyers who become heavily involved in the facts of a particular matter and those who enter briefly on the periphery for a limited and specific purpose related solely to legal questions.

The rationale of this case, however, has been challenged in several other cases. See Rearden v. Marlayne, Inc., 416 A.2d 852 (1980) and Gas-a-tron of Arizona v. Union Oil Co., 534 F. 2d 1322 (9th Cir. 1976). It has been followed in Jackson v. J.C. Penney Co., 521 F.Supp. 1032 (1981).

If a party should seek your disqualification under the application of these rules, they would have to establish two major elements: 1) The existence of a lawyer-client relationship, which is the necessary link to the imputation of any confidential knowledge to the lawyer's associates; and 2) a substantial similarity between the matters embraced in the pending suit and those involved in the previous representation. See In re Yarn Processing Patent Validity Litigation, 530 F.2d 83 (1976); Sears, Roebuck & Co. v. Stansburg, 374 So.2d 1051 (1979). Some facts which would be examined are the size of the firm, the area of the associate's specialization, and the lawyer's position in the firm. See Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 722 (7th Cir. 1982).

To rebut these presumptions, an attorney would need to show that there was no actual knowledge of the confidences and the secrets of the former clients and that the attorney has no particular advantage in the present case. If the attorney could get the former client to consent after consultation, the present representation would be validated. Consultation encompasses fully disclosing any problem in which a potential conflict could arise.

THIS OPINION IS ADVISORY ONLY

 

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