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Britton v. Smythe9/21/2000
e client, and not to accept representation of a person whose interests are opposed to those of the client. In re Agent Orange Product Liability Litigation (C.A.2, 1986), 800 F.2d 14, 17-18.
The duty not to take an interest adverse to a client is distinct from revealing client confidences. EC 4-5, of Canon 4 of the Code of Professional Responsibility, states, lawyer should not use information acquired in the course of representation of a client to the disadvantage of the client, except with the consent of his client after full disclosure * * *. This obligation to protect a former client's interests is broader than the evidentiary privilege against divulging client confidences. See Brennan's, Inc. v. Brennan's Restaurants, Inc. (C.A.5, 1979), 590 F.2d 168, 172; Sarbey v. Natl. City Bank, Akron (1990), 66 Ohio App.3d 18, 27. In fact, the use of the word information as opposed to confidence or secret is particularly revealing of the drafters' intent to protect all knowledge acquired from a client, since the latter two are defined terms. Brennan's, Inc. v. Brennan's Restaurants, Inc, 590 F.2d at 172.
All three affidavits were prepared by attorneys who, at one time or another, represented plaintiff's interests in the Lamb litigation. Attorneys Ballard and Coakley represented both plaintiff and Smythe, Cramer at the onset of the Lamb litigation. Attorney Jones took over plaintiff's defense after Smythe, Cramer denied coverage under the legal defense program. All three undoubtedly acquired information during their representation.
Attorney Coakley's affidavit stated he did not believe that a conflict of interest existed in Smythe, Cramer's representation of plaintiff and that he attempted to settle the Lamb litigation but was unable to do so. Attorney Ballard likewise averred that she believed there was no conflict of interest present in her dual representation of plaintiff and Smythe, Cramer and that settlement of the Lamb litigation, on any terms, was not a viable option for either Dietz or Smythe, Cramer Co. during the time Affiant represented Dietz.
Attorney Jones' affidavit went farther. His affidavit states:
4. At no time during his representation of Dietz was Affiant made aware of: (a) any facts that would have supported a claim by Dietz against Smythe, Cramer Co. relating to the defense of the Lamb litigation; or (b) any separate claims, defenses or arguments that were not asserted by Dietz because of the fact that she was being represented by the same attorneys defending Smythe, Cramer, Co; and (c) Affiant's defense of Dietz in the Lamb litigation was consistent with the defense asserted by her previous counsel; and
5. Affiant attempted to settle the Lamb litigation but could not do so because of Lamb's demands and Dietz' unwillingness to meet such demands. Affiant is aware of no facts to support the proposition that the Lamb litigation could have been settled prior to Affiant's retention even if Dietz had separate counsel from Smythe, Cramer Co.
Because all three attorneys represented plaintiff at some point during the Lamb litigation, they owed to plaintiff a duty of loyalty that extended beyond their representation of her during the LambLitigation. Coakley and Ballard are not actually involved as legal counsel in this current matter. Nor for that matter have they revealed any client confidences. Nonetheless, their prior representation of plaintiff, albeit in a joint capacity with Smythe, Cramer, means that they are not at liberty to take positions adverse to plaintiff once their representation ended.
Jones' affidavit is more direct. In it he states that he is aware of no facts that would support a finding
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