The Florida Bar

October 1, 1984

A law firm that withdrew from representation of a party because of a new partner's prior representation of the opposing party may hold transitional conferences with substitute counsel, provided that the confidences of the opposing party are not breached.

CPR: DR 2-110; DR 4-101(B)

Vice Chairman Proctor stated the opinion of the committee:

Law Firm “A” was retained to represent a plaintiff in an action involving a dispute under a franchise agreement. Prior to being retained in that action, Law Firm “A” engaged a new partner who had previously provided legal services to the person who became the defendant in the subject litigation, having specifically counseled the defendant on a proposed trust agreement of which the franchise agreement was the subject matter. Because of the previous representation of the defendant by Law Firm “A's” new partner, Law Firm “B” (the defendant's new counsel) informed Law Firm “A” of a possible conflict of interest.

Some two years after the notice of conflict, Law Firm “A” did withdraw from the representation because of concern that there might be imputed knowledge of possible confidences, and in order to avoid the appearance of impropriety. Law Firm “A” stated, however, that its new partner did not communicate any confidences or secrets whatsoever that he may have obtained from the defendant.

Law Firm “A” inquires whether it is proper for it to consult with plaintiff's new counsel concerning the status, issues and additional related matters of this litigation.
The inquiry does not address or explain why two years elapsed prior to Law Firm “A's” decision to withdraw to avoid the possibility of conflict or the appearance of conflict. It seems that in most instances the determination of whether conflict or appearance of conflict exists should be capable of resolution considerably in advance of two years into the litigation.

Law Firm “A” has a dual responsibility in this matter. On the one hand, defendant's former counsel (Law Firm “A's” new partner) has an ethical obligation not to reveal the confidence or secrets of his former client. DR 4-101(B). All members of Law Firm “A” share that obligation, as to actual knowledge and imputed knowledge. On the other hand, Law Firm “A” has a responsibility under DR 2-110 to take reasonable steps to avoid any foreseeable prejudice to the rights of its client, the plaintiff.

Thus, under the circumstances involved, we believe that Law Firm “A” may hold transitional conferences with its former client's new counsel regarding the status, issues and additional matters related to the plaintiff's case, being sensitive to, cognizant of and in compliance with, however, the provisions of Canon 4 with respect to the secrets or confidences of the defendant.

[Revised: 08-24-2011]