Ethics Opinions

ETHICS OPINION NO. 90
OF THE MISSISSIPPI BAR

RENDERED Thursday, January 19, 1984

REPRESENTATION ADVERSE TO FORMER CLIENT- A lawyer need not disqualify himself in a matter concerning a former client unless the terminated employment had some substantial relationship to the new matter or unless he received privileged information that might be used in the new matter against the former client.

The Ethics Committee of the Mississippi State Bar has been requested to render an opinion on facts which we summarize.

The adult ward of a conservator contacted lawyer X concerning dissatisfaction with the conservator and dissatisfaction with the manner in which executrix was handling the estate of the ward's deceased mother. The conservator is himself a lawyer and is acting as attorney for the conservatorship.

X informed the conservator of the ward's dissatisfaction and the conservator expressed a desire to resign. The conservator invited X to be present and represent the ward at a hearing on a petition for the sale of real property which was pending in the mother's estate. Thereafter, X reviewed the court file in the conservatorship and concluded that the conservator had mishandled the ward's funds and was, therefore, personally liable to the ward.

The conservator filed a final accounting and tendered his resignation to the court. X prepared and filed a petition for the appointment of a substitute conservator, in which the conservator joined. However, the Chancellor refused to accept the resignation of the conservator at that time, preferring instead to require the present conservator to serve until the mother's estate was finally settled.

When the petition for the sale of real property was called up for hearing in the mother's estate, the conservator informed the court that he had no objection to X appearing as attorney for the ward. The Chancellor inquired as to whether X had filed a written answer objecting to the sale. X responded that he had prepared an answer on behalf of a proposed replacement conservator but, inasmuch as the original conservator had not been discharged and the replacement conservator had not been appointed, the answer had not been filed.

The court took a recess in order for the conservator to determine whether he wished to file the pleading. The conservator signed the answer, striking all references to the proposed replacement conservator and substituting his name therefor. X signed the answer as attorney for the conservator and the same was filed in the mother's estate.

The hearing was not resumed that day, but various negotiations were conducted in chambers. X never gave any advice to the conservator or had any confidential attorney/client discussions with him. During the course of the negotiations in chambers, the conservator withdrew portions of the answer that had just been filed.

At a later date, X informed the conservator that in his opinion the conservator had not properly handled the ward's funds and X asked the conservator to resign. The conservator then refused to resign.

Lawyer X has asked the Ethics Committee to respond to four questions.

The first question is: At the hearing on the petition for the sale of real property, did X serve as attorney for the ward, as attorney for the conservator, or as attorney for both the ward and conservator?

The answer to this question is a matter of law, not ethics, and the Ethics Committee is not authorized to express an opinion on a matter of law. However it is to be noted that X has stated that he signed the answer as attorney for the conservator; therefore, for the purpose of responding to the remaining questions the Committee will assume that a true attorney-client relationship existed between X and the conservator, and that the conservator would now be considered a former client of X.

The second question is: May X now file an action to have the conservator removed for his alleged wrongdoings?

Whether a lawyer is disqualified from representing an interest adverse to that of a former client is an ethical, not a legal, consideration.Spragins v. Huber Farm Service, Inc., 542 F. Supp. 166, 171 (N.D. Miss., 1982). Therefore, the Committee will respond.

In determining whether a lawyer should handle a matter which is adverse to a former client, the facts must be reviewed in light of Canons 4 and 9 of the Code of Professional Responsibility.Duncan v. Merrill Lynch, Pierce, Fenner & Smith, 646 F.2d 1020 (5th Cir. 1981).

Canon 4 provides:

A Lawyer Should Preserve The Confidences And Secrets Of A Client.

Disciplinary Rule 4-101 defines "confidence" and "secret" as follows: "Confidence" refers to information protected by the attorney-client privilege under applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.

The information contained in this request indicates that X did not receive any confidential or secret information from the conservator. All information adverse to the conservator which is in the possession of X was secured from the court file.

Therefore, representation of the ward against the conservator will not contravene Canon 4. Canon 9 states that: A Lawyer Should Avoid Even The Appearance Of Professional Impropriety.

Ethical Consideration 9-2 provides in part:

Public confidence in law and lawyers may be eroded by irresponsible or improper conduct of a lawyer. On occasion, ethical conduct of a lawyer may appear to laymen to be unethical. --While a lawyer should guard against otherwise proper conduct that has a tendency to diminish public confidence in the legal system or in the legal profession, his duty to clients or to the public should never be subordinate merely because the full discharge of his obligation may be misunderstood or may tend to subject him or the legal profession to criticism. When explicit ethical guidance does not exist, a lawyer should determine his conduct by acting in a manner that promotes public confidence in the integrity and efficiency of the legal system and the legal profession.

Canon 9 "reflects the bar's concern that some conduct which is in fact ethical may appear to the layman as unethical and thereby could erode public confidence in the judicial system or the legal profession."Woods v. Covington County Bank, 537 F.2d 804, 813 (5th Cir. 1976). The Woods opinion adds:

It does not follow, however, that an attorney's conduct must be governed by standards which can be imputed only to the most cynical members of the public. Inasmuch as attorneys now commonly use disqualification motions for purely strategic purposes, such an extreme approach would often unfairly deny a litigant the counsel of his choosing. Indeed, the more frequently a litigant is delayed or otherwise disadvantaged by the unnecessary disqualification of his lawyer under the appearance of impropriety doctrine, the greater the likelihood of public suspicion of both the bar and the judiciary. An overly broad application of Canon 9, then, would ultimately be self-defeating. Therefore, what has been said with respect to judicial conduct is equally applicable here: a lawyer need not "yield to every imagined charge of conflict of interest, regardless of the merits, so long as there is a member of the public who believes it . . . Surely there can be some objective content to any inquiry into whether the 'appearance of justice [or propriety]' has been compromised in a given case." J. MacKenzie, The Appearance of Justice 240 (1974). Consequently, while Canon 9 does imply that there need be no proof of actual wrongdoing, we conclude that there must be at least a reasonable possibility that some specifically identifiable impropriety did in fact occur.

The facts presented in this request do not reveal any specifically identifiable impropriety which might occur from X representing the ward against the conservator.

As indicated in ABA Formal Opinion 342 (1975), a lawyer should not represent a party in a matter adverse to a former client if such matter is substantially related to the former representation. However, a lawyer is not required to sterilize his affairs to avoid baseless charges and he need not disqualify himself in a matter concerning a former client unless the terminated employment had some substantial relationship to the anticipated litigation or unless he received some privileged information which might be used in such anticipated litigation to the embarrassment or detriment of the former client.Church of Scientology of California v. McLean, 615 F.2d 691, 692 (5th Cir. 1980). The facts presented in this request do not indicate any substantial relationship between the limited representation of the conservator in the decedent's estate and the proposed representation of the ward against the conservator and, as stated above, X did not receive any privileged information from the conservator. Therefore, under the facts presented, X is not disqualified by Canon 9.

The third question is: If he is deemed to have represented the conservator to such an extent that he may not now represent the ward against the conservator, may X ethically refer the matter to another attorney and inform the new attorney of all pertinent facts in order that he may then take the necessary action to have the conservator removed?

Under the facts presented, the Ethics Committee is of the opinion that X may represent the ward against the conservator. However, if X determines that public confidence would be promoted by his not actively participating in a proceeding against the conservator and that the likelihood of public suspicion would outweigh the social interest of a client being represented by the counsel of his choosing, we are of the opinion that no Ethical Consideration or Disciplinary Rule would prohibit X from referring the matter to another attorney and informing that attorney of the facts in order that he might, if he deemed it appropriate, bring an action on behalf of the ward against the conservator.

The fourth question is: Should X take any action to inform the Chancellor of the conservator's alleged wrongdoing?

The facts presented indicate that all of the information possessed by lawyer X came from a review of the court file. The Committee is of the opinion that X has no duty to inform the Chancellor of matters that are apparent from reviewing the court file.