Careers

Diversity, Equity & Inclusion

Experience

Innovation

Interactive Maps

Locations

About

Pages

Meet our team of innovators
Ask us how we do it

Professionals

Insights

Services

Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

Home | Thompson Hine LLP

Atlanta

Chicago

Cincinnati

Cleveland

Columbus

Dayton

Los Angeles

Minneapolis

New York

Silicon Valley

Washington, D.C.

<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-2446" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2016/03/Public-record-300x176.jpg" alt="Storage" width="300" height="176">You&rsquo;re chatting with&nbsp;your pals at the bar association cocktail hour, and talk turns to the indictment just handed down against a former city official.&nbsp; Someone says, &ldquo;Hey, didn&rsquo;t your firm used to represent her?&rdquo;&nbsp; &ldquo;Yes,&rdquo; you reply, &ldquo;and a couple years ago, I had&nbsp;a really interesting case involving her.&nbsp; Maybe I shouldn&rsquo;t discuss it &mdash; but I guess it&rsquo;s of public record, so....&rdquo;&nbsp; And with that, you&rsquo;re off to the races, discussing your former client&rsquo;s old case.&nbsp;&nbsp;Have you done anything wrong, since it&rsquo;s all &ldquo;of public record&rdquo;?
&ldquo;Publicly available&rdquo; vs. &ldquo;generally known&rdquo;
<a href="http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_9_duties_of_former_clients.html">Model Rule 1.9(c)</a> &nbsp;says that when you have formerly represented a client in a matter, you&nbsp;shall not thereafter:
<div>
(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
</div>
<a href="http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_9_duties_of_former_clients/comment_on_rule_1_9.html">Comment [8]</a> notes that formerly representing a client &ldquo;does not preclude the lawyer from using generally known information about that client when later representing another client.&rdquo;
But significantly, just because information might be a matter of &ldquo;public record,&rdquo; or &ldquo;publicly available&rdquo; in a court filing, does not necessarily mean that it is &ldquo;generally known&rdquo; within the meaning of the ethics rules.&nbsp;&nbsp;That&rsquo;s the holding of a case decided last month by the Pennsylvania Superior Court, <a href="http://filehost.thompsonhine.com/uploads/Dougherty_v._Pepper_Hamilton_8c49.pdf">Dougherty v. Pepper Hamilton LLP, et al.</a>
Disloyal use?
The ruling in Dougherty revives a union official&rsquo;s suit against&nbsp;the Pepper Hamilton firm for breach of fiduciary duty.&nbsp; The firm had formerly represented the official when he was subpoenaed by a grand jury as part of a federal bribery investigation.&nbsp;&nbsp;An FBI affidavit&nbsp;was part of that investigation; it was&nbsp;later mistakenly filed on the federal court&rsquo;s electronic PACER system.&nbsp; Subsequently, the firm represented the Philadelphia Inquirer in defending a defamation suit by&nbsp;the same official against the newspaper.&nbsp; In representing the newspaper, Pepper Hamilton used the&nbsp;FBI affidavit.
The official alleged that the firm breached its duty to him by using information from the former representation, including the FBI affidavit.&nbsp; Pepper Hamilton countered that since the information was &ldquo;publicly available,&rdquo; it could not form the basis of a disloyalty claim.
The state court of appeals&nbsp;agreed with the official, reversing the lower court&rsquo;s grant of summary judgment in favor of the law firm.
Duty of confidentiality not &ldquo;nullified&rdquo; by public record
Whether information is &ldquo;generally known&rdquo; for purposes of Rule 1.9,&nbsp;said the court, depends on the circumstances.&nbsp;&nbsp;The court said that&nbsp;publicly-accessible electronic data could be &ldquo;generally known&rdquo; if it is easily accessible, such as through public indexes.&nbsp; But&nbsp;information is not generally known if it would be difficult or expensive to obtain or would require&nbsp;special knowledge.
Quoting opinions from Ohio and West Virginia, the Dougherty court noted that &ldquo;an attorney is not free to disclose embarrassing or harmful features of client&rsquo;s life just because they are documented in public records or the attorney learned of them in some other way,&rdquo; and that &ldquo;the ethical duty of confidentiality is not nullified by the fact that the information is part of a public record or by the fact that someone else is privy to it.&rdquo;
There were genuine issues of fact, the court said, about whether the FBI affidavit was actually &ldquo;generally known,&rdquo; and these questions were&nbsp;enough to keep the case against the law firm alive.
Your lips are sealed
In all, the safest thing to do at a cocktail party&nbsp;is&nbsp;to keep quiet about information you know as a result of formerly representing a client,&nbsp;even if you think that it is of &ldquo;public record.&rdquo;&nbsp; That&rsquo;s the best way to steer far clear of any chance of misconduct.&nbsp; And when it comes to &ldquo;using&rdquo; information of a former client on behalf of another client, careful analysis is required before you conclude that the &ldquo;generally known&rdquo; exception applies.

core/freeform

Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Lawyers can’t necessarily disclose former client info, even if it’s “publicly available”