Participation of Antitrust Division Attorney in \"Armored Car\" Cases ( 1977 )

N ovem ber 10, 1977
77-64 MEMORANDUM OPINION FOR THE
ASSISTANT ATTORNEY GENERAL,
ANTITRUST DIVISION
Participation of Antitrust Division Attorney in
“Armored Car” Cases
This is in response to your request for the opinion of the Office of
Legal Counsel on whether there would be any conflict of interest
involved in the assignment of a named (Mr. G) attorney in your
Division to work on several antitrust matters involving armored car
companies, apparently including Wells Fargo. Tw o of the matters are
criminal antitrust cases, one is a civil case, and the fourth is a grand
jury investigation. We see no objection to Mr. G ’s participation.
It appears that Mr. G was formerly an associate with a law firm from
September 1974 through March 1977, and that the law firm was previ­
ously general counsel for Wells Fargo, but that he “never had any
occasion to work on or indeed, to be made aware of any matter in any
way connected with the firm’s representation of Wells Fargo.” Wells
Fargo took the position that in view of the law firm’s prior position as
a general counsel for Wells Fargo, no member of the firm could
properly be involved in the representation of any company or individu­
al called before any grand jury investigating possible violations in the
armored car industry. The law firm ultimately acquiesced in this view.
However, apparently before the law firm had agreed to decline all
representation of companies or individuals connected with the grand
jury investigation, a member of the law firm was contacted concerning
the possibility of his representing an individual who had been subpoe­
naed before the armored car grand jury. A t the request of the member,
Mr. G contacted your division to obtain information about procedural
aspects of compliance with the subpoena, such as the date the grand
jury was empanelled, whether evidence had been presented before a
previous grand jury in the matter, the filing of letters of authority and
oaths of office, where subpoena returns were filed, and whether the
names of companies and individuals subpoenaed to appear could be
obtained. He reported the substance of that conversation to the particu-
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lar member of the law firm and had no further contact with the case.
Several days later, he was told that because of the firm’s prior represen­
tation of Wells Fargo, the firm could not represent the individual.
Based on these facts, it is our view that there would be no actual or
apparent impropriety involved in Mr. G ’s participation in the armored
car cases.
The applicable standards are contained in the American Bar Associ­
ation (ABA) Code of Professional Responsibility, to which all Justice
Departm ent attorneys are subject. See 28 CFR 45.735-1(b). Canon 4 of
the Code requires an attorney to preserve the confidences of a client.
Although a lawyer violates this provision only if he actually breaches
the confidential relationship, many courts have held that in order to
protect the confidentiality o f the relationship, a lawyer is disqualified
from representing a party in a matter “substantially related” to the
subject m atter o f a prior representation in which he may have obtained
confidential information. See, e.g., American Roller Co. v. Budinger, 513
F. 2d 982, 984 (3d Cir. 1975); Emle Industries, Inc. v. Patentex, Inc., 478
F. 2d 562, 570-71 (2d Cir. 1973); American Can Co. v. Citrus Feed Co.,
436 F. 2d 1125 (5th Cir. 1971). See also ABA Formal Opinion 342, 62
A.B.A.J. 517.
W e may assume that the law firm’s earlier representation of Wells
Fargo was in matters “substantially related” to the armored car cases,
so that attorneys who actually worked on Wells Fargo matters would
be barred from all involvement in those cases. But this does not neces­
sarily mean that Mr. G is disqualified. The courts have declined to
impute all confidential information received in a law firm to all persons
in the firm. W here the individual involved was merely an associate in
the law firm and had no connection w ith the matters in question, the
individual is not barred under Canon 4. See, e.g., Gas-A-Tron v. Union
Oil Co., 534 F. 2d 1322 (9th Cir. 1976); Silver Chrysler Plymouth, Inc. v.
Chrysler Motors Corp., 518 F. 2d 751, 756-57 (2d Cir. 1975).
N or do we believe that Mr. G is barred- by virtue of his limited
inquiries to your Division. First, it appears that the law firm declined
the requested representation; we would be reluctant to find disqualifica­
tion under Canon 4 on the basis of only a fleeting association with a
case that was soon declined. Second, even assuming that the firm may
have received some confidential information in connection with the
preliminary inquiry about its handling of the case, it does not appear
that any such information was imparted to Mr. G. He states that it is
his recollection that he was never told the identity of the client, and he
does not now even recall the name o f the New York attorney who
contacted the firm. Mr. G merely obtained information from your
Division about the grand ju ry investigation generally and relayed it to
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the firm. This type of peripheral involvement does not, in our view,
give rise to disqualification under Canon 4. See, Silver Chrysler Plym­
outh, Inc. v. Chrysler Motors Corp., supra, at 756-57.
L eon U lm an
Deputy Assistant Attorney General
Office o f Legal Counsel
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