When can a lawyer who switched firms be disqualified from a matter adverse to a former client, and is the new firm disqualified too?
Ohio BPC Opinion 89-013: Representing a Client Against a Former Client
Short answer: The Board concluded that a lawyer may not oppose a former client where the interests are materially adverse and the matters are the same or substantially related, but it said the fact-specific test and the question of imputed firm disqualification belong to a court, not an advisory opinion.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Ohio Board of Professional Conduct's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Currency note
This opinion was issued in 1989 under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct (including Ohio Prof. Cond. R. 1.9 and 1.10) before relying on any specific rule mentioned here.
Plain-English summary
The Board received several requests about lawyers who leave a firm that represented a client and join a new firm that is adverse to that former client, when the lawyer had been involved in the former representation. The questions were whether the lawyer is precluded from the new representation, whether that disqualification is imputed to the new firm, and whether the whole firm can be insulated.
On the individual lawyer, the Board stated that a lawyer is prohibited from representing a client against a former client when two conditions are met: the interests are adverse in some material respect, and the matters in the former and current representations are the same or substantially related. It grounded the duty in DR 4-101(B) (preserving confidences and secrets) and EC 4-6 (the duty continues after employment ends), and agreed with commentary (Wolfram) that an absolute bar would be unacceptable and that new representations should be restricted only for weighty reasons. It tied the standard to the substantial-relationship test courts use on disqualification motions (citing T.C. Theatre Corp. v. Warner Bros.).
On imputation, the Board described the Sixth and Seventh Circuit two-step analysis (Manning v. Waring, Cox): a presumption of shared confidences arises on a showing of substantial hardship, that the affected lawyer was privy to the former client's confidences, and a substantial relationship between the matters; the presumption can be rebutted by timely, effective institutional screening that insulates the affected lawyer. The Board stressed that applying any substantial-relationship test requires exploring the complete factual situation, so the determination cannot and should not be made in an advisory opinion; the court or adjudicative body in the case is the proper forum.
Common questions
Q: Can a lawyer take a matter against a former client?
A: Under this opinion, not where the interests are materially adverse and the matters are the same or substantially related; that combination is prohibited under the confidentiality duties of DR 4-101(B) and EC 4-6.
Q: Is the lawyer's new firm automatically disqualified?
A: The Board treated imputation as a legal question for a court. It described a presumption of shared confidences that, unless rebutted by effective screening, requires firm disqualification, but declined to decide it in an advisory opinion.
Q: Can screening prevent firm-wide disqualification?
A: The opinion stated the presumption of shared confidences may be rebutted by showing specific institutional screening mechanisms were timely implemented to insulate against the flow of the former client's confidences, judged case by case on objective evidence.
Background and rules framework
The opinion interprets the former Ohio Code of Professional Responsibility, DR 4-101(B) (confidences and secrets) and EC 4-6 (continuing duty after the representation ends), and imports the substantial-relationship and screening framework that federal courts apply to disqualification motions.
Citations and references
Rules of Professional Responsibility (Ohio):
- Former Code of Professional Responsibility, DR 4-101(B), confidences and secrets
- Former Code of Professional Responsibility, EC 4-6, duty continues after employment ends
Cases:
- T.C. Theatre Corp. v. Warner Bros., 113 F. Supp. 265 (S.D.N.Y. 1953), substantial-relationship test
- Manning v. Waring, Cox, James, Sklar and Allen, 849 F.2d 222 (6th Cir. 1988), presumption of shared confidences and screening
- Schiessle v. Stephens, 717 F.2d 417 (7th Cir. 1983); LaSalle Nat'l Bank v. County of Lake, 703 F.2d 252 (7th Cir. 1983)
Other authorities cited:
- Wolfram, Modern Legal Ethics 358 (1986)
See also
- Ohio BPC Opinion 1989-005: Office-Sharing Lawyers on Opposing Sides of a Divorce
- Ohio BPC Opinion 1988-024: Withdrawal, Former Client, and Fee on Withdrawal
- Ohio BPC Opinion 1988-015: Former Public Defender as Prosecutor / Special Prosecutor
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-89-013.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 89-013
Issued May 30, 1989
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]
SYLLABUS: A lawyer is prohibited from representing a client against a former client when two conditions are met: the interests of the former client and the present client are adverse in some material respect, and the matters involved in the former and the current representations are the same or substantially related. In order for this test, or any substantial relationship test to be applied, there must be an exploration of the complete factual situation involved. Such a determination cannot and should not be made in the form of an advisory opinion.
In addition, whether an attorney's disqualification should be imputed to other members of the affected attorney's law firm is a legal question for a court or similar adjudicative body to decide. However, we advise an attorney or law firm faced with this issue to consider the following analysis. First, will the disqualification work a substantial hardship on the present client? Second, is it clear that the affected lawyer was privy to confidential information from the former client? Third, is there a substantial relationship between the subject matter of the prior and present representations?
If the answer to these questions is "yes," then a presumption of the shared confidence arises which requires disqualification of the law firm unless rebutted. This presumption can be rebutted by showing that specific institutional screening mechanisms have been implemented to effectively insulate against the flow of confidential information from the affected attorney to other members of his or her law firm.
OPINION: We have received several requests for advisory opinions on the topic of lawyers and their representation against former clients. Typically what occurs is that a lawyer who works in a law firm representing a particular client then leaves that firm and joins another law firm representing someone against the lawyer's former client. The lawyer, while employed by the previous firm, had been involved in the representation of the former client. The question then becomes, is the lawyer precluded from being involved in representing his new law firm's client against the former client? If the lawyer is disqualified because of the former representation, is this disqualification imputed to other members of the lawyer's present firm? Finally, is there anyway to prevent the entire firm from being disqualified?
A major concern in any situation where an attorney is representing a current client against a former client is the potential disclosure of confidential information. DR 4-101(B) states that a lawyer shall not knowingly:
1) Reveal a confidence or secret of his client.
2) Use a confidence or secret of his client to the disadvantage of the client.
3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.
Furthermore, "the obligation of a lawyer to preserve the confidences and secrets of his client continues after the termination of his employment." Code of Professional Responsibility, EC 4-6.
However, we agree with one commentator who stated that an absolute rule prohibiting attorneys from representing a present client against the interests of a former client is unacceptable. Wolfram, Modern Legal Ethics 358 (1986). Likewise, freedom to enter into new representations by lawyers and clients should be restricted only for weighty reasons. Id.
The issues presented in this opinion typically arise in the context of a motion for disqualification. Therefore, the factors utilized by courts in resolving motions for disqualification are helpful in answering these questions under the Code of Professional Responsibility. When faced with a motion to disqualify, courts have generally established that when any substantial relationship can be shown between the subject matter of a former representation, and that of a subsequent adverse relationship, the latter will be prohibited. T.C. Theatre Corp. v. Warner Bros., 113 F. Supp. 265 (S.D.N.Y. 1953).
The lawyer, in the facts outlined above, could not represent the new client against his former client if the subject matter of the former and present representations are adverse and substantially related. It must then be determined whether the affected lawyer's disqualification is imputed to the members of his law firm.
The test utilized by the Courts of Appeals for the Sixth and Seventh Circuits in dealing with disqualification motions requires a two-step analysis. First, whether a presumption of share confidences has been established by demonstrating: that disqualification will work a substantial hardship on the client who may have to seek new counsel, that the quarantined lawyer was privy to confidential information received from the former client now seeking disqualification of the lawyer's present firm, and that there is a substantial relationship between the subject matter of the prior and present representations. Second, if established, is the presumption rebutted by other factors? Manning v. Waring, Cox, James, Sklar and Allen, 849 F.2d 222, 225 (6th Cir. 1988).
Does the presumption arise here? It must be determined whether the confidences acquired by the lawyer in his or her representation of the former client have been passed on, or are likely to be passed on to members of his law firm. Id., (citing Schiessle v. Stephens, 717 F.2d 417, 421 (7th Cir.1983)). The presumption may be rebutted by showing specific institutional mechanisms have been implemented to effectively insulate against the flow of confidentiality from the quarantined attorney to other members of his or her present firm. Manning, supra, 849 F.2d at 225 (citing LaSalle Nat'l Bank v. County of Lake, 703 F.2d 252 (7th Cir. 1983)).
Whether the presumption of shared confidences has been rebutted through the use of screening devices should be based on objective and verifiable evidence and must be made on a case-by-case basis. Manning, supra, 849 F.2d at 225 (quoting Schiessle v. Stephens, 717 F.2d 417, 421 (7th Cir. 1983)).
Therefore, in terms of the law firm's ethical responsibilities, it should disqualify itself unless measures have been taken which sufficiently demonstrate that confidences of the former client have not been disclosed and that they have "in a timely fashion, implemented screening procedures which will be effective in preventing any disclosure of these confidences." Manning, supra, 849 F.2d at 227. We agree with the Manning court's holding that such a process maintains the law's traditional concern for the sanctity of a client's confidences in that the former client is "accorded a presumption of shared confidences which, if unrebutted, will dictate disqualification." Id.
In order for this test or any substantial relationship test to be applied, there must be an exploration of the complete factual situation involved. Such a determination cannot and should not be made in the form of an advisory opinion. Rather, the court or adjudicative body involved in the case is the appropriate forum for such a case-by-case determination.
This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.