ETHICS OPINION 644-1975 CONFLICTING INTERESTS: DUTY TO FORMER CLIENT

Opinion Number 644

NUMBER 644

QUESTION.

 

A former officer of a publicly held corporation instituted suit against the corporation. In the course of a pretrial discovery he admitted that he had stolen substantial funds from the corporation while he was its officer. In addition, he alleged that another former officer also had misappropriated funds belonging to the corporation. The corporation’s lawyer never represented the admittedly dishonest officer, but did represent the other officer at the time of his alleged misappropriation of funds. His representation of the latter officer terminated two years ago. The lawyer at no time had any information concerning his former client’s alleged misconduct. He asks if there would be any impropriety in his representing the corporation in bringing a criminal complaint against the former officer who had not been his client, notwithstanding the possibility that any investigation may “spill over” against the former officer who had been his client?

 

ANSWER.

 

If it is possible that information gained by the corporation’s lawyer in the course of his representation of the former officer might be used to the disadvantage of such officer, the lawyer should not represent the corporation in bringing the complaint. Can. 4; DR 4-101 (B) (2); EC 4-5. A lawyer’s obligation to preserve a client’s confidences and secrets survives the termination of his employment. EC 4-6 In view of the fact that the inquiring lawyer had no knowledge of his former client’s alleged offense, or information related thereto, he could not be required or tempted to divulge or use any information of a confidential or secret nature, and accordingly his representation of the corporation would not be in violation of Can. 4. N.Y. County 472 (1958).

 

The fact that the lawyer at one time represented the officer who may be implicated if there is an investigation of the admittedly dishonest officer would not of itself create a conflict of interest. N.Y. Country 603 (1972), Inasmuch as a period of two years has elapsed since such representation terminated, his representation of the corporation in bringing the complaint would not create an appearance of impropriety, in violation of Can. 9. See N.Y. State 329 (1974).

 

The attorney may accept the employment by the corporation to bring the complaint against the admittedly dishonest officer.

 

January 30, 1975.