Ethics Hotline & Opinions

ETHICS DOCKET NO. 2002-14

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 2002-14

RE: Potential Conflict of Interest Arising from Employment by Successive Law Firms

 

You state that you were involved in an employment discrimination lawsuit wherein you represented the Defendant, Employer X. The Plaintiff, Mrs. P was represented by Attorney B. The discrimination lawsuit went to trial and a jury verdict was returned in favor of Employer X. You then changed firms and are currently employed with Law Firm A. Law Firm A previously represented Ms. P in connection with the preparation of wills and estate planning documents in the mid-1990s. You have no other knowledge of that particular matter and have never seen the particular file. Ms. P is now suing Attorney B for malpractice. You are now being called as a witness in the pending malpractice action.

Your inquiry raises two questions. The first question is whether you have an obligation to disclose to the parties in the malpractice action the fact that the firm where you are currently employed has represented Ms. P. The second question is whether you may disclose said fact if asked by counsel at the deposition, or will this violate any confidentiality rules.

First, it is the Committee's opinion that you have no obligation under the Maryland Rules of Professional Conduct to disclose that the firm where you are presently employed previously represented Ms. P.

Secondly, if asked a question at the deposition regarding your previous contacts with the Plaintiff, Rule 1.6 (a) requires you to decline to provide such information as it is confidential. Rule 1.6 (a) of the Maryland Rules of Professional Conduct provides as follows:

"A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b)."

Further, Rule 1.10 of the Maryland Rules of Professional Conduct imputes certain obligations on you as would apply to other members of the firm. Thus, if another attorney in your firm would have to invoke the privilege then you are also obligated to do so. Since this disclosure is not impliedly authorized in order to carry out the representation, nor falls under the exceptions of paragraph (b) of Rule 1.6, you can not disclose the fact of your firm's previous representation of Ms. P without Ms. P's consent. If such consent is not given but Court ordered after the deposition, then you may disclose pursuant to Rule 1 .6(b)(4).

We hope the foregoing is responsive to your inquiry.

 

DISCLAIMER: Opinions of the Maryland State Bar Association (MSBA) Ethics Committee are an uncompensated service of the MSBA. This Committee’s opinions are not binding on the Maryland Court of Appeals, Maryland Attorney Grievance Commission, MSBA or this Committee. The reader is advised that subsequent judicial opinions, revisions to the rules of professional conduct, and future opinions of this Committee may render the Opinions stated herein outdated. As such, the Committee’s opinions are advisory only and neither the Committee nor the MSBA assumes any liability whatsoever with respect thereto. Accordingly, reliance upon the opinions of this Committee is solely at the risk of the user.