I respectfully pose the following problem:
1. The undersigned heretofore had represented one D.B. up to and including on or about December 1, 1962, when he obtained his license from the Securities and Exchange Commission as a broker-dealer under the name and style of Q.S. Corporation.
2. Subsequently, I was asked to commence civil liability proceedings under the Securities Act of 1933 against both D.B. and Q.S. Corporation by persons who claim they were defrauded as the result of offer and sale of securities to them by the Q.S. Corporation during mid-February 1963
3. None of the actions complained of involve any of the circumstances covering the period of time during which the undersigned represented D.B.
4. I have agreed not to accept engagement as counsel pending an opinion from your Committee.
The applicable canons are Canon 6 and Canon 37. Canon 6 reads in part as follows:
“The obligation to represent a client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.”
Canon 37 reads in part as follows:
“It is the duty of a lawyer to preserve the client’s confidences. This duty outlasts the lawyer’s employment, and extends as well to his employees; and neither of them should accept employment which involves or may involve the disclosure or use of these confidences, either for the private advantage of the lawyer or his employees or to the disadvantage of the client, without his knowledge and consent, and even though there are other available sources of such information. A lawyer should not continue employment when he discovers that this obligation prevents the performance of his full duty to his former or to his new client.”
The facts stated in the question indicate that none of the actions of the former client of the inquiring attorney “involve any of the circumstances covering the period of time” when the inquiring attorney represented him.
The inquiry must be deeper than such a chronological one in reaching a conclusion as to the propriety of the proposed representation. In order that the proposed representation be proper it must be clear that the proceedings against the former client will not involve any matter with respect to which “confidence has been reposed” and will not involve “disclosure or use” of confidences of the former client.
The facts stated do not provi.de a basis for making a determination of those questions. The inquiring attorney must address himself to those questions on the basis of his knowledge of his prior relationship with his former client. If there is any possibility that knowledge gained during the prior period of representation would give the inquiring attorney any advantage whatsoever in the prospective litigation against his former client, the proposed representation should be refused.
Dated: October 15, 1963