Croce v. Superior Court

KNIGHT, J.

—The determinative question here presented is whether an attorney who has represented several clients associated in a business enterprise, in the defense of an action involving their common interest, wherein it was denied that a copartnership existed between them, is disqualified, and the law firm of which he later became a member is also disqualified, from afterwards representing one of those former clients as plaintiff in subsequent litigation instituted against his associates, wherein it is alleged that a copartnership did exist between them. After a hearing in the superior court pursuant to a motion made by the petitioner in that behalf, wherein evidence was introduced, the superior court held in the negative, and thereafter petitioner instituted this proceeding in

mandamus

to compel the superior court to enter its order disqualifying said attorney and the firm of which he is now a member from further participation in the latter litigation. We are of the opinion that the trial court’s ruling should be sustained.

The ground urged for such disqualification is that while said attorney was representing the common interests of all of said clients in the former litigation, he acquired confidential information from petitioner and his associates which is material, relevant and pertinent to the determination of the latter litigation, and that such information may be, and petitioner fears it will be, used in the latter litigation to the detriment, damage and prejudice of petitioner.

But it appears to be well settled, as stated in Thornton on Attorneys at Law (vol. 1, p. 183), that “When two or more clients employ the same attorney in the same business, communications made by them in relation to such business are not privileged

inter sese;

nor are such communications privileged as between any one of the parties and the attorney. It is the secrets of the client which affect his right that the law does not permit the attorney to divulge. By selecting the same attorney, and making their communications in the presence of each other, each party waives his right to place those communications under the shield of professional confidence.’’ (See, also,

Wahl’s Estate,

218 Ill. App. 295;

Stewart

v.

Todd,