Formal Opinion 121
(1963)
Conflict of Interest in P.U.D. Case

The following inquiry has been referred to the Committee:

Two attorneys represented a certain P.U.D. for several years and until December 1, 1960. A part of their employment related to the planning for the construction of a certain dam. At this time, residents of the areas to be flooded by the pool behind the dam, if it is built, request the same attorneys to represent them in one or the other of two ways: 1. Either protect them from the building of the dam which will flood them out, and/or 2. To help them get as much for their property as can be had from the P.U.D.

The attorneys feel that the information obtained from working for the P.U.D. three years ago would not be useful in either of the above situations.

Canon 6 provides in part as follows:

"The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed."

Canon 37 provides in part as follows:

"It is the duty of a lawyer to preserve his client’s confidences. This duty outlasts the lawyer’s employment, and extends as well to his employees; and neither of them should accept employment which involves or may involve the disclosure or use of these confidences, either for the private advantage of the lawyer or his employers to the disadvantage of the client, without his knowledge and consent, and even though there are other available sources of such information."

Opinion No. 45 of the Ethics Committee of the Association provides in part:

"It is professionally improper for an attorney to undertake a claim against a person he has previously represented when use is made of any information, confidential or otherwise, which the attorney has acquired in the course of such representation."

The general facts submitted do not permit the specific answers requested. It would appear that the attorney could not accept employment under the first proposal and that employment might be accepted under the second proposal dependent upon the specific facts in light of the canon quoted above.

[See RPC 1.6, 1.9]