ETHICS QUESTION OF THE MONTH
This content is generated by the Texas Center for Legal Ethics and is for informational purposes only. Look for the reasoning behind the answers at legalethicstexas.com.
A lawyer represents Client A. During the
representation, the lawyer has access to Client A’s files, including
documents regarding lawsuits in which the lawyer did not represent
Client A. Some of these documents are filings from lawsuits in which
Client A was sued for fraud. The lawyer’s representation of Client A
The lawyer subsequently is asked to represent a new client, Client B, who is adverse to Client A. This new representation would be factually unrelated to any of the matters in which the lawyer represented Client A. However, Client B has fraud claims against Client A that are similar to prior fraud claims that the lawyer learned of in reviewing Client A’s files during the prior representation.
The lawyer believes that the information he learned about these prior fraud allegations against Client A could be relevant to Client B’s claims against Client A. The lawyer wonders whether he could share information about Client A’s other lawsuits, find those filed pleadings at the courthouse, and potentially use that information to show that Client A has a pattern of committing fraud in the same way that Client B now claims.
The lawyer is aware that Rule 1.05(b)(3) of the Texas Disciplinary Rules of Professional Conduct states that a lawyer shall not knowingly “[u]se confidential information of a former client to the disadvantage of the former client after the representation is concluded unless . . . the confidential information has become generally known.”
The lawyer thinks he can tell potential Client B about these other lawsuits because (1) the lawyer did not represent Client A in those matters and (2) the information that he knows is available to anyone who looks for it in the court’s files. Which is most accurate?
A. The lawyer can share the information because he did not represent Client A in those matters, and Client A’s other suits are “generally known” because they were public filings.
B. The lawyer can disclose to Client B what he remembers about Client A’s documents because he did not represent Client A in those matters. However, the prior fraud lawsuits are not “generally known” under the Rule 105(b)(3) exception.
C. The lawyer cannot disclose to Client B what he remembers about Client A’s documents, even though he didn’t represent Client A in those matters. But he can direct Client B to the courthouse and suggest looking for other lawsuits against Client A.
D. The lawyer cannot reveal what he remembers from Client A’s files nor can he direct Client B to the courthouse to search for other lawsuits.
E. The lawyer should not represent Client B at all.
The answer is E. For the reasoning behind the answer, go to legalethicstexas.com.TBJ
ABOUT THE CENTER
The Texas Center for Legal Ethics was created by three former chief justices of the Supreme Court of Texas to educate lawyers about ethics and professionalism. Lawyers can access the Texas Disciplinary Rules of Professional Conduct, the Texas Lawyer’s Creed, and a variety of other online ethics resources by computer or smart device at legalethicstexas.com.
The information contained in Ethics Question of the Month is intended to illustrate an ethics issue of general interest in the Texas legal community; it is not intended to provide ethics advice that applies regardless of particular facts. For specific legal ethics advice, readers are urged to consult the Texas Disciplinary Rules of Professional Conduct (including the official comments) and other authorities and/or a qualified legal ethics adviser.