November 10, 1977

Participation of Antitrust Division Attorney in

“Armored Car” Cases

77-64 MEMORANDUM OPINION FOR THE

ASSISTANT ATTORNEY GENERAL,

ANTITRUST DIVISION

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. Two 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 previously 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 individual 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 subpoenaed before the armored car grand jury. At 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 particu261
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 representation 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 Association (ABA) Code of Professional Responsibility, to which all Justice 

Department 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 of the relationship, a lawyer is disqualified 

from representing a party in a matter “substantially related” to the 

subject matter of 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.

We 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 necessarily 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. Where the individual involved was merely an associate in 

the law firm and had no connection with 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).

Nor 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 disqualification 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 of the New York attorney who 

contacted the firm. Mr. G merely obtained information from your 

Division about the grand jury 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 Plymouth, Inc. v. Chrysler Motors Corp., supra, at 756-57.

L e o n U l m a n

Deputy Assistant Attorney General

Office o f Legal Counsel

263