Ethics Opinions from the Bar Association of San Francisco
INFORMAL OPINION 1973-10
If an attorney represented both parties in preparing a buy-sell agreement and his fee was paid equally by each party, that attorney may represent one of the parties for breach of contract by the other without the consent of the other party only if he obtained no confidential information in the course of his original employment no confidential information in the course of his original employment by both of the parties which would adversely affect the interest of the former client.
The parties to the agreement came to the attorney independently and the fees for his services were paid equally by each. It is claimed that the buyer defaulted on the note and the seller has requested the attorney to undertake his representation in effecting collection.
The attorney seeks an advisory opinion as to whether he may perform the requested legal services.
The Code of Professional Responsibility of the American Bar Association states in Section EC 5-15:
and in Section EC 5-16:
The foregoing addresses itself only to the conduct of an attorney before the situation here presented occurs.
Rule 5 of the Rules of Professional Conduct adopted by the State Bar of California states:
Rule 5 thus does not prohibit employment adverse to either a present or former client respecting matters unrelated to confidential information, with or without the consent of such client or former client. It is difficult to conceive in the situation here presented, however, that the attorney would be without confidential information relating to the client or former client's financial affairs and as such is the very subject of his proposed employment, he should either obtain the consent of the client or former client or decline the proffered employment.
All opinions of the Committee are subject to the following disclaimer:
In using these opinions you should be aware that subsequent judicial opinions and revised rules of professional conduct may have dealt with the areas covered by these ethics opinions.