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In re Gadbois9/21/2001
isqualification motions. See Stowell v. Bennett, 169 Vt. 630, 632, 739 A.2d 1210, 1212 (1999); Crepeault, 167 Vt. at 216, 704 A.2d at 783. Rule 1.9(a) states what has been termed a prophylactic rule that is intentionally broad to ensure that a lawyer does not use confidential information acquired from a former client against that client and to avoid even an appearance of impropriety. See C. Wolfram, Modern Legal Ethics ยง 7.4.2, at 364. Especially in disqualification situations, the former client should not be put in the position of disclosing the confidential information in order to protect it. Id. at 360; Crepeault, 167 Vt. at 216-17, 704 A.2d at 783.
We agree with the Board that respondent's conduct would violate Rule 1.9(a) if it governed this case. We also agree with the family court's disqualification decision. The difficulty with this case is that the prophylactic rule now stated in Rule of Professional Conduct 1.9(a) was not contained in its predecessor, the Code of Professional Responsibility, which was in effect when respondent entered his appearance in the divorce case against his former client. The Board hearing panel acknowledged this difficulty. Nevertheless, it found a violation of two specific disciplinary rules, DR's 4-101(B)(3) and 5-105(A), and a general disciplinary rule, DR 1-102(A)(7), apparently on the view that the combination of these disciplinary rules created a prohibition on respondent's conduct.
We cannot reach this conclusion from the specific disciplinary rules relied upon by the hearing panel and the Board. The first is DR 4-101(B)(3), which required that a lawyer not knowingly " se a confidence or secret of his client for the advantage of himself, or of a third person." "'Confidence' refers to information protected by the attorney-client privilege under applicable law, and 'secret' refers to other information gained in the professional relationship . . . the disclosure of which would be embarrassing or would be likely detrimental to the client." DR 4-101(A).
As the minority of the Board held, there is no evidence that respondent knowingly used confidential information acquired from his former client for the advantage of his new client. The evidence before the Board related to Rainville's fear that respondent still held confidential information and might use it against him, not that he had used it. The majority of the Board tried to fill this gap in the hearing panel's decision with its reference to respondent's expressed position that his presence as a "known" character would help settle the divorce case. We do not believe that reference can be fairly read as a threat to misuse confidential information against Rainville, especially since respondent continuously stated that he had no information from the former representation of Rainville that remained relevant thirteen years later. To the extent that the Board grounded its finding of a violation on this reference, we must conclude that the finding of a violation is not clearly and reasonably supported by the evidence. See In re Bucknam, 160 Vt. 355, 362, 628 A.2d 932, 936 (1993).
The Board also found that respondent violated DR 5-105(A). DR 5-105(A) forbids an attorney from accepting employment "if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests." DR 5-105(A). "Differing interests" are defined as those "that will adversely affect either the judgment or the loyalty of a lawyer to a client, whether it be a conflicting, inconsistent, diverse or other interest." Code of Prof'l Responsibility, Definiti
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