ETHICS OPINION 401-1951

NUMBER 401 APRIL 1951

Question. A and B are brothers and partners in several corporate business enterprises. For approximately fifteen years I have represented both the corporations in connection with a good deal of the legal work and have represented A and B. on occasion, in connection with their personal legal matters. Recently a controversy has arisen between A and B in connection with the operation and conduct of the businesses.

A has retained another attorney to commence legal action to dissolve the business enterprises or force a dissolution, and B has come to me to represent him in connection therewith. A has demanded that I do not represent B in connection with this controversy by reason of the knowledge that he claims I have obtained during the years I have represented A and B as partners and as individuals.

B possesses the same knowledge and information that I have and would divulge it to any other attorney. Because of his confidence in me, he insists that I represent him in the present controversy.

May I represent B without violating any of the Canons of Ethics?

Answer. In the opinion of the Committee, Canons 6 and 37 make it clear that it would be improper for the inquiring attorney to represent B in the circumstances. Having represented both A and B for many years and as their lawyer having been the recipient of their confidences in connection with their personal affairs as well as their joint business ventures, the attorney may not now act for B in litigation between A and B growing out of their joint business ventures.

That B has all the knowledge and information of the attorney and would divulge it to any other attorney does not matter. As Canon 37 states, it is the duty of a lawyer to preserve his client’s confidences; and he should not accept employment which may involve the use of these confidences without such client’s knowledge and consent “even though there are other available sources of such information.” (See also Opinions 44, 157, 207, 369, and 389.)