Opinion 91-18
(July 1991)

You have asked for an opinion on a conflict of interest situation. Attorney A worked for a firm B and represented a client C, who is adverse to your clients in pending litigation. According to an attorney at firm B, A was in receipt of confidential and sensitive information regarding this case. A left firm B and started working for your firm. Since commencement of A's employment with your firm, she has had absolutely no contact with the file in the pending matter. As A is an associate, she has no fee interest in the case itself. You indicate that she will perform no work in the future on this particular file, and that nobody in your firm has had any discussions about this case with A, other than your advising her that an issue has been raised as to your continued representation of your clients in this matter. Since A has left firm B, no other aspect of this case has been discussed with A, and no other aspect of this case will be discussed with A in the future. A has been completely screened from any activity regarding this file and will be so screened in the future.

You notified firm B of A's employment with your firm and asked that any objection that firm B may have to your continued representation of your clients be waived. Firm B has refused to waive the conflict and is maintaining the position that your firm may no longer represent your clients.

Pennsylvania Rule of Professional Conduct 1.10b provides that when a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interest are materially adverse to that person and about whom the lawyer had acquired information protected by Rules 1.6 and l.9(b) that is material to the matter unless:

1.  The disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and

2.  Written notice is promptly given to the appropriate client to enable it to ascertain compliance with the provisions of this rule.

The Committee notes that Rules 1.6 and 1.9(b) refer to confidential information, the type of which A had about client B.

Rule 1.10b is exactly on point with the situation you describe in your inquiry. There is no requirement of consent by the former client or its counsel to your continued representation of your clients, provided you continue to comply with Rule 1.10b. As part of your compliance with that Rule you should also inform your clients of the situation. Of course, a court of law may rule differently on a motion to disqualify you, but the Committee is or the opinion that you may continue to represent your client and sees no ethical impediment to your so continuing.

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.