Opinion 2002-2
(March 2002)

The inquirer has asked the Committee whether Pennsylvania's Rules of Professional Conduct governing conflict of interest prohibit an attorney, who represented a former client as a named defendant in various pending asbestos lawsuits, from now representing different defendants in the same lawsuits, while working at a different law firm.

The inquirer worked as an associate at a law firm representing clients named as defendants in asbestos lawsuits. The inquirer's duties included answering discovery, drafting and filing pleadings and motions, attending and participating in depositions, and attending case management conferences and settlement conferences in court. The inquirer subsequently accepted an offer from another law firm to represent different clients named as defendants in the same lawsuits as the former client. The inquirer's former employer advised in-house counsel for one of the clients that the inquirer was moving to a different law firm. Thereafter, the inquirer spoke directly with the in-house counsel, informing her of the activities that he had performed for her company at the former firm, that the new clients did not manufacture or supply the same products as the former client, and that there was no potential for joinder claims because the former client and new clients were already named as defendants in every asbestos case. In-house counsel told the inquirer that she did not perceive a conflict of interest, but she further stated that her company does not, as a matter of policy, provide consent waivers for conflicts of interest.

Pennsylvania Rule of Professional Conduct ("Rule(s)") 1.9 governs whether the inquirer may represent new clients in the same matter as a former client. Such representation is prohibited in circumstances where the new client's interests are materially adverse to the interests of the former client (Rule 1.9(a))without client consent. However, under the facts presented, the interests of the clients are similar and are not materially adverse. As there is not presently a conflict of interest, the inquirer need not obtain any waiver from the former client. Under the facts presented by the Inquirer, the Committee believes that such representation is not a conflict of interest.

The Committee points out however, that under the Rules of Professional Conduct the inquirer has a continuing obligation to monitor the representation to insure that the interests of the former and present clients do not become materially adverse. If the interests should become materially adverse later in the litigation (for example, if the new client makes a cross-claim against the former client), then the inquirer may not continue to represent the new clients unless the former client provides consent. Additionally, even where there is no conflict of interest, Rule 1.9(b) prohibits the inquirer from using any information relating to the former representation to the disadvantage of the former client, except as may be permitted by Rule 1.6 (confidentiality of information) or when the information becomes generally known. That confidential information which was attached as an exhibit to the motion for summary judgment for purposes of this Rule has become "generally known." However, the inquirer must be sure to maintain the confidentiality of any other information not so "generally known."

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.