State Bar of South Dakota

Ethics Opinion 88-8

September 29, 1988

FACTS

While you were a partner in a law firm in 1986, the “buyer” was interviewed by an associate in the firm and by your law clerk, regarding a slip and fall case against the sellers. The basis for the claim arose out of buyer’s possession of a mobile home. She was in possession of the mobile home under color of a contract for purchase of that mobile home. The Contract was silent as to repairs or modifications of the mobile home and hence, the buyer refused to execute the contract as she claimed the sellers agreed to do a number of things, including putting in a new stairway. After the Contract was tendered and the buyer went into possession of the mobile home, she fell on the stairs. The sellers did not acknowledge any responsibility for the stairways. Some time after the interview with the buyer, your law firm dissolved and you established a new law firm.

Working under your supervision, as an associate, is the same law clerk who participated in the interview in 1986. The sellers now seek to retain you to evict the buyer who is in possession of the mobile home under the disputed sale contract involved in the slip and fall case.

OPINION

The issue presented is whether this is the same or a substantially related matter as was the subject of the 1986 interview. Model Rule 1.9. A lawyer who formerly represented a client in a matter is prohibited from representing another person in the same or a substantially related matter in which the person’s interests are materially adverse to the interest of the former client. Additionally, one must determine whether you acquired information from your associate or your clerk which would be protected by Model Rule 1.6a.

From the facts as we reviewed them, there is no doubt that there were protected communications with the buyer during the 1986 interview, and that you had access to that information. This is particularly obvious because of the small size of your firm, your status as a partner, and your continued association with the law clerk, who is now your associate. Additionally, the eviction action appears substantially related to the personal injury matter. Hence, you are prohibited from representing the sellers of the mobile home in proceedings to evict the buyer or to foreclose the sale contract.

Where your participation is challenged, the burden is on you to prove that you acquired no knowledge protected by confidentiality. EZ Painter Corp. v. Padco Inc., 746 F2d 1459 (8th Cir. 1984).

Finally, under Rule 1.10, disqualification would be imputed to you because of your law clerk’s participation and knowledge from the prior representation. A firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client.

Donald E. Covey
Chair, Ethics Committee