FLORIDA BAR ETHICS OPINION
October 1, 1984
Advisory ethics opinions are not binding.
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.
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.