with whom CUMMINGS and SPRECHER, Circuit Judges, join, concurring in part and dissenting in part.
I remain convinced that both the result and analysis of the majority panel opinion are correct. 571 F.2d 390. Since the en banc majority concurs in the panel’s resolution of the jurisdictional issue, I will confine my remarks to the question of access to prior counsel’s work product.
I. Majority’s Holding
The majority holds that it was an abuse of discretion for the district court to refuse to allow substitute counsel to have access to prior counsel’s predisqualification work product without a finding that some specific confidential information exists therein. Accordingly, the majority opinion instructs the district courts in future cases to conduct an in camera inspection or other type of inquiry into the precise content of the pre-disqualification materials in order to determine if specific confidential information exists. (Maj. Op. at 204 and 211 n. 6.) For the present case, the majority assumes that no confidential information exists in Foley & Lardner’s work product and orders the district court to turn over the materials to substitute counsel. I respectfully submit that, upon the record before us, the majority’s assumption in the instant case is unwarranted and that its rule for future cases is both unworkable and a dangerous departure from long-accepted ethical guidelines.
The majority’s outright reversal of the district court which orders immediate turnover of Foley & Lardner’s work product to substitute counsel is unwarranted. Such a resolution does not even comport with the majority's own instructions to district courts in future eases to determine whether specific confidential information is contained in the questioned materials. The majority has apparently decided this case upon the bald assertion of defendants’ substitute counsel that no confidential information was used. I have found nothing in the record to support that assertion.1 Indeed, *212no one now involved in this case has ever seen the Foley & Lardner loan file analyses. It is disingenuous for defendants’ substitute counsel to argue, and for the majority to assume, that no confidential information exists in, or was used to create, the materials in question. Only the Foley & Lardner firm knows precisely what is contained in the materials and even those members of the firm who did the analysis might not be conscious of the extent to which confidences obtained from plaintiff shaped the final product. See the discussion in Part II infra.
In essence, the majority seems ready in this case to assume that there are no confidences contained in the work product unless shown otherwise. Failure to comprehend the limited nature of plaintiff’s “concession” regarding confidential information has contributed to the creation of this false and improper issue. Plaintiff’s counsel stated at the en banc oral argument that in a technical evidentiary sense there could be no information subject to an attorney-client privilege between parties represented by the same counsel. However interesting that observation might be as a footnote, this case involves the principles of legal ethics and not the law of evidence. To the extent evidentiary, procedural, or agency rules are generally instructive, we should accept their guidance. However, those rules should not strictly control the application of ethical principles. See Westinghouse Electric Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1316-1318 (7th Cir. 1978). As the ABA Code of Professional Responsibility (CPR) states,
The attorney-client privilege is more limited than the ethical obligation of a lawyer to guard the confidences and secrets of his client. This ethical precept, unlike the evidentiary privilege, exists without regard to the nature or source of information or the fact that others share the knowledge.
EC 4-4. Although not clearly expressed at oral argument, I understand plaintiff’s position to be that, aside from the narrow evi-dentiary point, there are many confidences and secrets which existed in the fiduciary relationship between plaintiff and Foley & Lardner and that the court should prevent Foley & Lardner from possibly using those confidences and secrets to plaintiff’s detriment.2 The statements of plaintiff’s counsel at en banc oral argument which are quoted by the majority in Part IV of its opinion fully support this understanding.
Nevertheless, even if the majority were to faithfully follow its holding that specific confidences or secrets must be shown to be present before access to the work product can be denied and remand this case for in camera inspection, such a resolution would be unworkable. The district judge would be called upon to determine if any of the documents in fact contain confidential information. In the present case, and presumably in most future cases, this undoubtedly would require a monumental commitment of judicial time as well as an additional expenditure of legal fees for all parties. Understandably, the majority can offer little guidance as to what the district courts should look for in such situations. Indeed the impossibility of establishing meaningful standards in this situation is obvious. Even *213the most superficially innocuous document or statement within a document may offer substitute counsel special insights into the plaintiff’s internal structure or its litigation posture which would have been unavailable to anyone except plaintiff’s prior counsel. CPR EC 4-5. See Part II C, infra. Accordingly, plaintiff will have no assurance that its interest in preventing its confidences and secrets from being used against it has been preserved by the district court.
The majority’s holding that the district court must inspect the documents in question before denying access to them also represents a dangerous departure from the generally accepted method of dealing with ethical questions which arise when a lawyer opposes a former client. As will be discussed in Part II, requiring a detailed inquiry into the specific confidences which might be possessed by prior counsel or used in his work product has long been considered improper. By attempting to draw fine ethical lines based upon the specific content of the objectionable material, the majority has adopted an approach to ethical enforcement which has been repeatedly condemned. See NCK Organization Ltd. v. Bregman, 542 F.2d 128, 132-33 (2d Cir. 1976); Cord v. Smith, 338 F.2d 516, 521, 524 (9th Cir. 1964). Remarkably, however, the majority further compounds its error by intimating that once the defendants have disclaimed the use of confidential information, the former client is the one who must point to the confidences used in the work. (Maj. Op. at 204) This is a direct reversal of the accepted burden of proof in such cases and severely limits the reach of Canon 4.
Therefore, it is my opinion that, upon the record, outright reversal of this case is improper even if one were to accept the majority’s rule that specific confidences or secrets must be shown before access to predis-qualification work product can be denied. However, it is also my belief that the theory underlying the majority’s instructions that the district courts conduct in camera inspections to search for specific confidential information in future work product cases is also in error, and, consequently, remanding for further proceedings would also be improper. What follows then, is an explanation of why I feel that proper application of Canons 4 and 9 of the CPR to this record warrants affirmance.
II. Canon 4
A. Application to Disqualification Situations.
The starting point for gauging the propriety of an attorney opposing a former client is Canon 4 of the ABA Code of Professional Responsibility. Canon 4 codifies the time-honored rule which prohibits lawyers from revealing the confidences and secrets of a client or former client. Courts have long recognized in enforcement of Canon 4 through attorney disqualifications that it defeats the purpose of the rule to require either the former client or the court to point to the specific confidences entrusted to the now adverse lawyer:
To compel the client to show, in addition to establishing that the subject of the present adverse representation is related to the former, the actual confidential matters previously entrusted to the attorney and their possible value to the present client would tear aside the protective cloak drawn about the lawyer-client relationship. For the Court to probe further and sift the confidences in fact revealed would require the disclosure of the very matters intended to be protected by the rule.
T. C. Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265, 269 (S.D.N.Y.1953). Consequently, to avoid this dilemma, courts have been virtually unanimous in requiring only that the moving party in a disqualification motion show (1) that there was an attorney-client relationship between the movant and counsel representing the opposing party and (2) that the subject matter of the current suit is “substantially related” to the matters or cause of action of the suspect attorney’s prior representation. E. g. Fred Weber, Inc. v. Shell Oil Co., 566 F.2d 602, 607-08 (8th Cir. 1977), cert. denied, 436 U. S. 905, 98 S.Ct. 2235, 56 L.Ed.2d 403 *214(1978); Wilson P. Abraham Construction Corp. v. Armco Steel Corp., 559 F.2d 250, 252 (5th Cir. 1977); Akerly v. Red Barn System, Inc., 551 F.2d 539, 544 n. 12 (3d Cir. 1977); Schloetter v. Railoc of Indiana, Inc., 546 F.2d 706, 710 (7th Cir. 1976); NCK Organization Ltd. v. Bregman, 542 F.2d 128, 132-33 (2d Cir. 1976); Redd v. Shell Oil Co., 518 F.2d 311, 315 (10th Cir. 1975). Once these two facts have been shown,
[t]he Court will assume that during the course of the former representation confidences were disclosed to the attorney bearing on the subject matter of the representation. It will not inquire into their nature and extent.
T. C. Theatre Corp. v. Warner Bros. Pictures, supra at 268. Accord Schloetter v. Railoc of Indiana, Inc., supra at 710.
It is important to note that the reason the courts have created this presumption of counsel possessing confidential information is to prevent the possible use of those confidences or secrets against the former client. This approach preserves the interest of the former client, in the specific information as well as the public interest in encouraging clients to freely “make known to their attorneys all facts pertinent to their cause.” T. C. Theatre Corp. v. Warner Bros. Pictures, supra at 269 (footnote omitted). Limiting the inquiry to determining whether a possibility exists that confidential information might be used against a former client also avoids a nightmarish enforcement situation which would be caused by forcing the actual use of confidences to be shown by the moving party or somehow gleaned from in camera inspection by the court.3 Lengthy experience with this most basic ethical rule has convinced numerous courts that when an attorney represents a party in opposing a former client on a matter substantially related to the previous relationship, the possibility of the attorney using confidential information against his former client exists and the lawyer must be disqualified. E. g. Akerly v. Red Barn System, Inc., supra at 544; NCK Organization Ltd. v. Bregman, supra at 134; In re Yarn Processing Patent Validity Litigation, 530 F.2d 83, 89 (5th Cir. 1976). The term “presumption” in this context is merely a label given to the recognition of the great possibility of confidential information being used against the former client when this particular situation (counsel opposing former client in a substantially related matter) is present in the case.
B. Application to Postdisqualification Situations.
It is in choosing the ethical principles to be applied in deciding the work product question that the majority, in my opinion, makes its basic mistake. The majority interprets certain language in the district court opinion as indicating that the trial judge felt a denial of access to predisquali-fication work product automatically follows from an order of disqualification. (Maj. Op. at 204.) In order to avoid this “per se” rule, the majority finds it necessary to completely disassociate the disqualification and work product questions.4 The error *215occurs when, in the process of emphasizing the need to separately analyze the two questions, the majority applies completely different ethical principles to the disqualification and work product issues.
To the extent that the language of the lower court which was quoted by the majority could be interpreted as creating a rule that disqualification automatically necessitates a denial of access to predisqualification work product in all cases, I would also view the district court’s reasoning as imper-missibly broad.5 However, the district court properly noted that, upon the facts of this case, permitting substitute counsel to have access to Foley & Lardner’s work product would be a
direct violation of the purpose behind disqualification; that is the preservation of the confidence of the former client given in the context of the fiduciary relationship he forged with his attorney.
74 F.R.D. at 627 (emphasis added). It is my belief that although the disqualification and work product issues can and should be separately analyzed, the general ethical principles which guide the disqualification of attorneys under Canon 4 should also guide subsequent proceedings relating to prior counsel’s predisqualification work product. To ignore those principles in later proceedings would, in some circumstances, allow the use of the precise confidential information which prompted the disqualification. The first question, then, is whether there is any reason for the general Canon 4 disqualification analysis (a former attorney-client relationship plus a substantially related current action equals a possible disclosure of confidence and, consequently, disqualification) to somehow change when these ethical principles are applied to the use of predis-qualification work product.
There can be no question that the second factor in the Canon 4 equation does not change since the finding in the disqualification action that the present suit is substantially related to the prior representation applies with equal force to a subsequent work product motion in the same action. However, it can be argued that the first factor, the attorney-client relationship, is somewhat attenuated (i. e., the objectionable representation is eliminated or lessened when the lawyer or law firm is no longer physically present and only the work product created before disqualification remains). The majority apparently takes the position that the physical absence of counsel necessitates a showing that specific confidential information actually exists in the work product before the documents can be suppressed. This is a direct reversal of the longstanding practice in disqualification questions which has consciously avoided inquiries into the actual confidences or secrets used or possessed. Having enforcement of ethical principlés turn on whether the courts or the plaintiff can actually point to specific confidential information is precisely the type of inquiry the prophylactic rule embodied in Canon 4 was designed to prevent.
As noted above, the purpose of presuming the possession of confidences in disqualification cases is that once a former attorney-client relationship in a substantially related case is. established, the possibility of confidential information being used against the former client is too great to allow continued representation. The issue has always been one of whether counsel had the opportunity to obtain and use confidences, not whether specific confidences were actually used. Consequently, the question here should be whether the physical removal of counsel from the case, while leaving his work product, eliminates or greatly lessens the possibility of confidential information being used against his former client.
*216It should be emphasized that proper application of this test would not result in a per se exclusion of work product each time a lawyer or law firm is disqualified for violating Canon 4.6 The present client and substitute counsel would be able to use the predisqualification work product whenever there was little or no possibility that confidences or secrets could be used against the former client/present adversary. One example of such a case would be where the conflicting representation arose after the work product in question was generated (e. g. the law firm representing one party hires a lawyer who represented the opposing party in matters substantially related to the present suit but only after several months of pretrial discovery and generation of work product). In such a case, there would be no possibility that the confidences possessed by former counsel could have been used to prepare the work product or been passed to substitute counsel through the work product.7 Also, under this rule, where the work in question is of the type that is so ministerial and easily available for inspection (e. g., pleadings and other filed documents) that the possibility of confidences being used to disadvantage the former client are minuscule, the district court could allow the use of the work.8 The validity of *217these “timing” and “type” examples would, of course, depend upon the facts of each case. Having postdisqualification work product cases turn upon whether there exists a reasonable possibility of confidential information being used in the formation of, or being passed to substitute counsel through, the work product in question, provides a flexible rule which can be readily used by the district courts and adheres to the principles embodied in Canon 4 and the disqualification decisions.
C. Application to Facts of this Case.
Applying the test noted above to the instant case, it is clear that there is a great possibility that confidential information is either present in Foley & Lardner’s work product or was used in the creation thereof. Indeed, it is difficult to imagine a situation more replete with the confidences and secrets which Canon 4 was designed to protect. To support that conclusion we need only compare the nature of the former legal representation to the issues raised in the present suit. As the court below noted in its disqualification order, 422 F.Supp. 493, 494 — 98, Foley & Lardner served as general counsel to all defendants and plaintiff simultaneously from plaintiff’s inception on November 3, 1971 until September 4, 1974. During this time, Foley & Lardner advised plaintiff on its creation and adoption of its Declaration of Trust; on its adoption of the Advisory Agreement defining the relationship between plaintiff and its loan advisor, defendant First Wisconsin Mortgage Company; on its use of Participation Agreements which defined the relationship between the plaintiff and defendant First Wisconsin National Bank regarding the real estate loans; and on the actual administration of some of the loans which are the subject of specific claims in the underlying suit. Foley & Lardner also attended and kept the minutes of all plaintiff’s Trustees’ meetings at which the loan advisor recommended investments and the Trustee decided whether or not to accept the recommendations.
In comparison with this detailed legal representation, plaintiff’s complaint includes allegations that defendants failed to disclose material information relating to plaintiff’s investments and that defendants breached contractual and fiduciary duties arising from the various relationships noted above. Thus, looking at the similarity between Foley & Lardner’s prior legal representation and the issues in this suit, the conclusion that there was a possibility of Foley & Lardner using confidential information in its work on this case is inescapable. The work product here, loan file analyses, was generated by Foley & Lardner with an eye toward the issues of the present suit and was based upon a relationship with both plaintiff and defendants which gave Foley & Lardner access to the *218innermost workings of plaintiff’s organization and the opportunity to observe first hand the discussions and decisions relevant to the issues in this case.9
While it should be unnecessary in applying Canon 4 to speculate as to the specific confidences which may have been used by disqualified counsel, I feel constrained, in this dissenting opinion, to specify some of the confidential information which possibly could be embodied in the work product. One example of confidential information which possibly could be passed through the work to substitute counsel is, given that some of the underlying claims are grounded in securities law, that Foley & Lardner knew the reaction of plaintiff’s Trustees to specific loan offerings and the amount of their reliance upon the representations of defendants in relation thereto. Foley & Lardner could have used those insights in determining what facts in the loan files were important and should be highlighted in the analyses. Moreover, the possibility of using confidential information to create the work product is even more obvious. It is unnecessary to step outside the record to note that the lucidity and usefulness of the work product is immeasurably enhanced by Foley & Lardner’s intimate knowledge of plaintiff’s internal operations, particularly with regard to the transactions involved in the suit. Being present at the plaintiff’s Trustees’ meetings and observing the manner in which the subject loans were approved would enable Foley & Lardner, if nothing else, to analyze the loan files with much greater specificity and emphasize particular or recurring names, dates, or correspondence.10
Once recognizing that the work product in this case possibly contains or is based upon confidential information, the impropriety of allowing its continued use by defendants is evident. The ability of defendants’ substitute counsel to discern from the loan file analyses a special emphasis upon particular loans and particular information relating to those loans is, at least, a distinct possibility in this case where Foley & Lardner was inextricably interwoven in the subject relationships. Also, substitute counsel’s reliance upon certain factual conclusions drawn by Foley & Lardner in the work product will surely be heightened by the knowledge that those who prepared these documents were in an exceptional position to make those conclusions. Yet it is not only possible, but highly probable, that this confidential knowledge which is the basis for the work product would not be apparent to an outsider such as a trial judge who likely could select only a portion of the work to inspect in camera. Even if the district court reviewed each and every loan file analysis, as well as the loan files themselves, it would not have the time for in depth and ongoing study as would substitute counsel once the work product was turned over.
Although I have specified some of the particular types of confidences and secrets which might be passed through, or used to create, the predisqualification work prod*219uct, I emphasize that all of this could be transmitted by Foley & Lardner’s work, and received and used by substitute counsel, without any cognitive notion of either law firm to act improperly or unethically.11 As noted in Emle Industries, Inc. v. Patentex, Inc., supra note 3, subtleties exist both on the level of the lawyer’s relations with his client and on the level of his role in the litigation process. The nature and content of these subtle relationships are incalculable and have been so recognized by the courts applying the ethical rule to preserve the confidences and secrets of a former client:
The rule prevents a lawyer from placing himself in an anomalous position. Were he permitted to represent a client whose cause is related and adverse to that of his former client he would be called upon to decide what is confidential and what is not, and, perhaps, unintentionally to make use of confidential information received from the former client while espousing his cause. Lawyers should not put themselves in the position “where, even unconsciously, they might take, in the interests of a new client, an advantage derived or traceable to, confidences reposed under the cloak of a prior privileged relationship.” 12
I am convinced there exists a significant possibility that confidences were used in the work product in this case.
Nevertheless, the majority disregards available precedents which clearly show that the prudent course when doubt is present is to opt for the more careful enforcement of ethical rules. See R. Wise, Legal Ethics 256 (2d ed. 1970). As stated above, I do not believe the doubt in this case can be removed by remand to the district court for in camera inspection and/or a hearing. Choosing a more permissive interpretation of the ethical rules which allows substitute counsel access to predisqualification work product of Foley & Lardner is an irreversible decision. The right of plaintiff not to be forced to litigate against the information and experience of its former general counsel regarding the very issues of this suit is lost once the work product is given to substitute counsel. On the other hand, defendant concedes that the basic work can be redone by substitute counsel. Consequently, the loss to defendants is temporary in terms of time and possibly recoverable in terms of previously paid attorney’s fees.13 Under these circumstances, proper adherence to the principles of Canon 4 commands affirmance.
III. Canon 9
As the foregoing discussion of Canon 4 shows, it is my belief that the possible breach of the ethical principles requiring preservation of the confidences and secrets of former clients is sufficient to justify denying substitute counsel access to Foley & Lardner work product. However, even if it were possible to draw fine distinctions in the content of the materials to be turned over to substitute counsel, thus avoiding a Canon 4 violation, permitting access to disqualified counsel’s work in this case would also constitute a violation of Canon 9’s ad*220monition that “A lawyer should avoid even the appearance of professional impropriety.”
Understandably, courts have shown considerable caution in using Canon 9 for fear of overly-broad applications of the potentially far-reaching rule. Nonetheless, a certain agreement has been reached on the application of Canon 9. It is settled that the rule is directed toward
maintaining, in the public mind, a high regard for the legal profession. The standard it sets — i. e., what creates the appearance of evil — is largely a question of current ethical-legal mores.
General Motors Corp. v. City of New York, 501 F.2d 639, 649 (2d Cir. 1974). Consequently, unlike the specific admonitions of Canons 4 and 5, Canon 9 covers the entire spectrum of lawyer conduct, including the attorney-client relationship itself and its residual obligations. Fred Weber, Inc. v. Shell Oil Go., supra at 609. Also, since the appearance of improper conduct is emphasized, proof of actual impropriety is unnecessary and the act in question must be prevented if it appears improper when evaluated in an “ ‘eye of the beholder’ context.” Id.14 Of course, we should not apply the sanctions of Canon 9 based upon the attitudes of the “most cynical members of the public,” and most courts have emphasized that flexibility is necessary by way of balancing public suspicion against the benefits to be gained by allowing the act in question. Woods v. Covington County Bank, supra note 8 at 813.15 Therefore, to properly apply Canon 9 we must ask whether reasonable members of the public would view access to predisqualification work product as being improper and, if so, whether the benefit of permitting such access outweighs the harm to the public trust.
It does not appear to me that the average person would approve of allowing disqualified counsel’s work to be used against its former client on the facts of this case. It is possible that the appearance of impropriety might be somewhat lessened by the physical removal of the Foley & Lardner firm. However, I believe the public would be at least disheartened by the knowledge that although a lawyer who deserts a former client can be disqualified, the attorney can still turn over all of his work to substitute counsel. Popular belief in the strong fiduciary relationship between attorneys and their clients would undoubtedly be shaken when the clients realized that the lawyer whom they once took into their strictest confidence, and in whom they placed ultimate trust on the very matters at issue in the case is permitted to prepare the secret materials which are now being used by the opposing party in the suit.
I also believe that this loss of public trust outweighs the harm to defendants of having to pay additional legal fees. In any event, the defendants’ interest in avoiding double payment is lessened given the potential resolution of the fees question between the defendants and the disqualified law firm. The strength of defendants’interest is further weakened by the fact that they were aware of the potential impropriety and yet encouraged Foley & Lardner to *221continue on the case. (R: 7, Shute Affid. 8-9.)
I therefore conclude that Canon 9 would also be violated, in this case, by permitting substitute counsel to have access to the work prepared by Foley & Lardner. On these facts, a holding which allows Foley & Lardner work product to be used later against the disfavored client will certainly not encourage attorney conduct which will “inspire the confidence, respect and trust of his clients and of the public . . . .” EC 9-6.
IV. Effects of Majority’s Decision
Underlying the majority’s decision in this case is apparently a concern that the practical impact of the panel decision outweighs any “technical” violation of ethical rules. As stated above, I believe the ethical violation here to be far more substantial than does the majority. However, I am also deeply troubled by the practical effects of the majority’s position.
The majority seems convinced that denying substitute counsel access to predisquali-fication work product merely serves to give the plaintiff a “gamesmanship headstart” in the litigation.16 While this position ignores the possible ethical violations which would be prevented by denying such access, it also overlooks the “gamesmanship” effect of its own result. By requiring that specific confidences be found before access to predisqualification work product can be denied, the majority has encouraged law firms which are the actual or possible targets of disqualification motions to manufacture as much work product as time permits before disqualification. If the law firm is subsequently disqualified, its continuing influence in the case will be ensured by substitute counsel’s use of the predisqualifieation materials. It is conceivable, and perhaps likely, that certain large clients who have been long represented by a single law firm would be willing to risk paying double legal fees in return for the possibility of using prior counsel’s work throughout the course of the litigation. As noted by the district court, this form of continued representation by disqualified counsel could result in almost total circumvention of the disqualification order. 74 F.R.D. at 627.
I recognize that some motions for disqualification or other sanctions based upon ethical rules are brought exclusively for harassment purposes and serve to further complicate long and complex litigation. See Woods v. Covington County Bank, supra at 813. However, while instant credibility determinations would be the ideal resolution, where that is not possible courts should not completely ignore the underlying ethical problems. By concentrating totally on the impact of the panel decision upon the defendants in this case, the majority has not properly considered the ethical problems involved and, consequently, the harm to the plaintiff in having to litigate against the work of its former general counsel on the precise subject of that representation.17
*222I also note that one effect of the majority opinion may be a departure from the long-settled rule in disqualification questions that an attorney’s possession of actual confidences need not be shown where there was a former attorney-client relationship in a substantially related matter. Were other courts to have the same difficulty I experience when attempting to distinguish between the ethical rules to be applied in disqualification situations and those applicable to postdisqualification questions, the result might well be a refusal to disqualify counsel unless the former client could point to specific confidences or secrets which could be used by the opposite party in the suit. Such a rule would poorly serve the intent of Canon 4 and would ultimately lead to a hesitation by clients to fully confide in their counsel.
Finally, I note that it has been generally accepted in this Circuit and in others that the decision of the district court regarding enforcement of ethical standards can be overturned only for a clear abuse of discretion. E. g., Schloetter v. Railoc of Indiana, supra at 710. Under this standard, the majority holds that unless the district court can point to some specific confidence breached, it is an abuse of discretion not to allow substitute counsel access to predis-qualification work. Given the near impossibility of determining what is and is not confidential information, the effect of such a holding on the facts here will as surely create a per se right to work product access as had the majority specifically so stated. Lower courts will look to the particularly egregious facts here and reason that if it is an abuse of discretion to deny access in such a situation, then it surely will be an abuse of discretion to deny access when, as would be the more common case, the disqualified law firm was not general counsel to both parties and involved in the very transactions at issue. This result is particularly disturbing given that, in a case similar to the present, the majority’s result will consistently work against the disfavored client who presumably will always be the smaller and less important to the law firm. Large clients, as well as large firms, should not be shielded from the results of properly applied ethical principles. Cf. Westinghouse Electric Corp. v. Kerr-McGee Corp., supra at 208.
I emphasize that while this dissent attempts to articulate the legal standards applicable to this type of ethical question, it is not my intention to advocate any rigid or per se rules. The enforcement of ethical principles is peculiarly a matter for the district court and requires careful weighing of the facts and circumstances of each case. See Akerly v. Red Barn System, Inc., supra at 544; Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751, 757-58 (2d Cir. 1975). Our function as an appellate court should merely be to ensure that the factual analysis is properly conducted and the ethical principles correctly applied. On the facts of this case, not only is there nothing to suggest an abuse of discretion by the district court, but in so holding the majority is, in my opinion, creating new and improper legal standards to guide future cases.
*223By way of summary, I will answer the eight paragraphs of “undesirable results,” quoted by the majority at pages 208-209, which the defendants believe will flow from the position taken by the panel opinion and this dissent.
1: The possibility of improperly using the confidences or secrets of plaintiff, not the fault of the defendants, is the primary reason to deny substitute counsel access to the work product. Note 16 supra. However, there are indications of some fault on the part of defendants here. Note 13 supra.
2: There is a possibility of confidential information being passed through or used to create the work product in this case. This, and not the showing of actual confidences, is the proper test. Pages 213-219 supra.
3: There are no per se rules advocated. If anything, the dissent allows for complete consideration of the relevant circumstances within the framework of district court discretion. Page 222 supra. The extent, if any, to which plaintiff caused any of the work product to be generated is hotly disputed and a matter peculiarly within the discretion of the district court.
4: The moratorium argument is not very persuasive in this case where Foley & Lardner was aware both of the significant potential for disqualification and of possibly being unable to turn over the work product from the outset of the case. (R: 36:2.) In any event, expediency should not prevent proper adherence to ethical standards. Note 17 supra.18
5: Defendants’ hardship, in this case, does not weigh favorably against forcing plaintiff to litigate against the secret materials prepared by its former counsel. Page 219 and note 13 supra.
6: If anything, the position of this dissent would encourage the public to fully confide in their lawyers by ensuring that no possible use of those confidences could be made by the lawyer for the benefit of another, more favored, client. Pages 219-221 supra.
7: The benefit to plaintiff is in the assurance it will not have to litigate against the confidences possessed by a former attorney. This outweighs the financial harm, if any, to defendants. Page 221 & note 16 supra.
8: Discipline of counsel is an effect of, but not the primary purpose for, both disqualification and the denial of access to work product. Defendants presumably have recourse against disqualified counsel for lost legal fees. Note 13 supra.
It is with great respect, but with equally great conviction, that I offer these dissenting views.
. The only evidence remotely supporting that assertion is contained in affidavits filed by certain Foley & Lardner partners in opposition to the original disqualification motion. These affidavits stated that all information given to Foley & Lardner by plaintiffs regarding this suit was given in the presence of officers from one or more of the defendants (McGaffey Af-fíd., II9; Shute Affid., f[ 10). While this might eliminate any claim of attorney-client privilege to confidential information, as noted in the following textual paragraph, the question of attorney-client privilege is not at issue here.
. The Disciplinary Rules accompanying Canon 4 provide a helpful definition of terms:
DR 4-101 Preservation of Confidences and Secrets of a Client.
(a) “Confidence” refers to information protected by the attorney-client privilege under applicable law, and “secret” refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.
In this dissent, “confidences” or “confidential information” are intended to refer generally to that type of information protected by Canon 4 including “secrets” not privileged under the laws of evidence.
Perhaps the majority is overlooking that protection is to be given to “secrets” as well as “confidences.” As will be more fully explained in Part II below, Foley & Lardner’s intimate familiarity with the plaintiffs internal handling of the transactions at issue in this suit is a sufficient reason to conclude that there is a great possibility those insights or “secrets” were the basis for, or were carried into, the work product.
. See Part II.C. infra. Such an inquiry would be thwarted by the difficulty in determining what is confidential and by the difficulty in totally exorcising the effects of any such confidences from the litigation. The latter problem is compounded by the subtle nuances of both the litigation process and the attorney’s influence thereon.
The dynamics of litigation are far too subtle, the attorney’s role in that process is far too critical, and the public’s interest in the outcome is far too great to leave room for even the slightest doubt concerning the ethical propriety of a lawyer’s representation in a given case. These considerations require application of a strict prophylactic rule to prevent any possibility, however slight, that confidential information acquired from a client during a previous relationship may subsequently be used to the client’s disadvantage. Ernie Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 571 (2d Cir. 1973); See also T.C. Theatre Corp. v. Warner Bros. Pictures, supra at 269.
. For general support of this approach, the majority cites two lower court opinions which granted disqualification but allowed substitute counsel to use certain materials possessed by disqualified counsel. (Maj. Op. at 206-207.) Both of these cases are factually distinct from the present action. Hutton involved factual statements obtained from a corporate officer and not legal analysis of those facts as is the question involved here. 305 F.Supp. at 400. *215Allied Realty involved only material which had already been made public.
. It is, of course, proper for an appellate court to affirm the result reached by the district court but for reasons other than those relied upon below. See Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 158, 82 L.Ed. 224 (1937) (“if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason.”).
. The majority notes that the only circuit court to have cited the panel decision in this case disagreed with the result reached. International Business Machines Corp. v. Levin, 579 F.2d 271 (3d Cir. 1978) (IBM). If anything, the Third Circuit emphasized the limited extent of the First Wisconsin panel opinion in its one-line reference thereto in IBM. (Maj. Op. at 208.) However, some discussion is warranted.
In IBM, plaintiff’s attorneys in an antitrust action against IBM were disqualified by the trial court after it was discovered that the law firm simultaneously represented IBM in certain labor matters. The Third Circuit affirmed the disqualification, finding that Canon 5 was violated and that the district court did not abuse its discretion in allowing disqualified counsel’s work product to be turned over to substitute counsel.
I fully agree with the result in IBM v. Levin and feel that case merely serves to highlight the need for affirmance here. First, the court in IBM found the simultaneous representations were unrelated and that the primary justification for disqualification of the law firm under Canon 5, “vindication of the integrity of the bar,” 579 F.2d at 283, was fully satisfied without preventing access to predisqualification work product. Canon 4 and Canon 5 are aimed at different ethical considerations. In IBM, the purpose of DR 5-105, to ensure undivided loyalty, was not violated by allowing plaintiff’s substitute counsel to use the work product. The work product was created for the antitrust plaintiff, while the “adverse effect” to IBM referred to the unrelated labor matters. Allowing substitute counsel in the antitrust suit to use the work product would not have any further “adverse effect” on IBM. In contrast, we are concerned here with Canon 4. The purpose of Canon 4, to prevent the possible use of confidences and secrets against a former client, remains in substantial jeopardy as long as prior counsel’s work product is used in this suit.
Second, the court in IBM emphasized that a district court’s action in framing ethical sane-tions “may be reversed only for a clear abuse of [its] discretion.” 579 F.2d at 279. The Third Circuit noted that the disqualification motion was made by IBM three months before trial. This was five years after the suit was filed and followed nearly three years of extensive discovery. 579 F.2d at 274, 275. Under these circumstances, the Court of Appeals found it was not an abuse of discretion to allow the work product turnover. See note 8 infra. In the present case, the disqualification issue was raised shortly after the suit was filed and, consequently, the relative hardship is not so great as to find that the district court abused its discretion in refusing to permit the requested access.
. There is nothing in the present record which suggests that the opportunity to include confidential information in the work product or use confidences in the creation thereof was in any way diluted by the timing of the creation of the work product. Foley & Lardner was subject to disqualification from the inception of the suit (the district court disqualified the firm ab ini-tio) and, as such, all work on this case was done during the time when there was a possibility of plaintiff’s confidences being used in the creation of work product.
. The status of the pleadings and other documents filed by Foley & Lardner is not at issue in this case. Although I admit that some consideration can be given to the type of predis-qualification work sought to be used by substitute counsel, this position is not inconsistent with my view that access to the work product in this case was properly denied. The question, first of all, should be left to the sound discretion of the trial judge who is in the best position to gauge the possibility that the documents sought were based upon or contained confidential information. For example, it ‘has been noted that some motions which ostensibly seek to enforce ethical rights and duties are *217actually based upon a desire to harass the opponent in litigation. See Woods v. Covington County Bank, 537 F.2d 804, 813 (5th Cir. 1976). Thus, where the timing or manner of the objection to the use of prior counsel’s pleadings, etc. together with the routine content of these documents convince the trial judge that the former client is attempting to harass substitute counsel or the opposing party, allowing continued use of these papers might be proper. That the plaintiff in this case did not seek total eradication of all Foley & Lardner work indicates its sincerity and lack of improper motive.
Second, documents such as pleadings and answers to interrogatories which are in the record are less dangerous to the interest of the former client in preserving his confidences. Disqualified counsel naturally would be reluctant to include facts or other information which could only have been obtained in confidence from his former client. Moreover, should the former client feel the documents contain or are based upon specific confidences or secrets which disqualified counsel obtained during their previous attorney-client relationship, he could move to strike the suspect documents. While support of this motion might entail revealing the individual confidences which the former client fears are contained in the documents, see T.C. Theatre Corp. v. Warner Bros. Pictures, supra at 269, it would at least be better than giving the court a general list of possible confidences in order to suppress secret work product which is unavailable to the opposing former client.
I emphasize that questions as to the pleadings and other filed documents are not before the court in this case and depend upon factual variations which are best left to the discretion of the district courts who can view them in the context in which they arise.
. In fact, it was also alleged by plaintiff as an original ground for disqualification that members of Foley & Lardner might even be called to testify in the suit. 422 F.Supp. at 495.
In spite of the obvious possibility of confidential information being used in such circumstances, in Part IV of its opinion, the majority states that plaintiff “was in a position to know whether such possibilities existed” and criticizes plaintiff’s counsel for not enumerating specific contentions. (Maj. Op. at 210.) Requiring the former client to divulge precisely what confidential information may be contained in the work product would result in revealing the very information sought to be protected. T.C. Theatre Corp. v. Warner Bros. Pictures, supra at 269.
. I realize that normally this type of work is done by younger associates of the large law firms involved who would be less likely to have had the intimate relationship with plaintiff described above. However, the possibility, or more likely the probability, exists that this analysis was performed under the direction of and with instructions from those more senior attorneys who did possess that inside knowledge. In any event, we cannot base an important ethical decision upon the distinction as to which members of a law firm are likely to have access to the knowledge concededly possessed by other members. See Schloetter v. Railoc of Indiana, Inc., supra at 710.
. As stated in the majority panel decision, we are dealing with reputable law firms and there is no indication that any deliberate improprieties have occurred.
. T.C. Theatre Corp. v. Warner Bros. Pictures, supra at 269 (footnote omitted). This quotation is particularly relevant to the majority’s assumption that the materials being sought here are “the result of routine lawyer work” which could have been done entirely “by lawyers who were strangers to all of the parties.” (Maj. Op. at 204.) Aside from the lack of record support for that assumption, in the dynamics of legal representation, it is impossible to guarantee the “routineness” of the type of secret legal analysis done here.
. The responsibility for any “lost” legal fees incurred in the preparation of the work in question is a matter between Foley & Lardner and defendants. The district court found that Foley & Lardner had doubts as to the propriety of their continued representation of defendants at least as early as two days after the suit was filed. 422 F.Supp. at 495. However, defendants apparently urged Foley & Lardner “to do everything possible to remain as their counsel in this case.” (R: 7, Shute Affid. 8-9.) Thus, it appears that neither the defendants nor Foley & Lardner are totally without fault for causing unusable legal work to be created. Their relative culpability is not our concern here.
. Judge Kaufman’s statement, drawn from eminent authority, is particularly relevant here:
Nowhere is Shakespeare’s observation that “there is nothing either good or bad but thinking makes it so,” more apt than in the realm of ethical considerations. It is for this reason that Canon 9 of the Code of Professional Responsibility cautions that “A lawyer should avoid even the appearance of professional impropriety” and it has been said that a “lawyer should avoid representation of a party in a suit against a former client, where there may be the appearance of a possible violation of confidence, even though this may not be true in fact.” American Bar Association, Standing Committee on Professional Ethics, Informal Opinion No. 885 (Nov. 2, 1965).
Emle Industries, Inc. v. Patentex, Inc., supra, note 3 at 571.
. This is not to say that the balancing of competing interests is foreclosed in the Canon 4 analysis. Under that canon, courts can and should weigh the interest of the former client in preserving its confidences and secrets against the potential harm to the present client. As noted above, the temporary loss, if any, to defendants does not outweigh the permanent injury to plaintiff who would have to oppose the legal analysis prepared by its former counsel.
. Correspondingly, Judge Pell’s original dissent dismissed plaintiffs offer to allow substitute counsel to have access to the materials as long as plaintiff was also given access, as merely an attempt by plaintiff to receive valuable legal work without having to pay therefor. However, as with the pleadings and other documents, at least when the materials are available to the disfavored client there is an opportunity to examine them and take action to protect specific confidences. See note 8 supra.
Similarly, the en banc majority emphasizes that denying substitute counsel access to the predisqualification work product serves to penalize the defendants “irrespective of any fault on the part of the party litigant.” (Maj. Op. at 205.) I agree with the proposition that in ethical questions, equitable principles demand consideration of all factors in order to do substantial justice. However, as noted above, it appears that defendants are not entirely free from fault in this case. See note 13 supra. In any event, the purpose of denying access to the work is not to penalize the defendants but, more importantly, to protect the plaintiff specifically and the public generally.
. The majority is particularly concerned that denying access to predisqualification work product will effectively cause a moratorium upon trial preparation during the resolution of what possibly could be a frivolous disqualification motion. (Maj. Op. at 204-205.) As an example, the majority emphasizes that, in this case, it took 15 months from the time the motion for disqualification was filed until Foley & Lardner was ordered disqualified. As noted *222above, ordering disqualification does not automatically necessitate a denial of access to work product. However, when denial is warranted, the desire to expedite final resolution of the case should not prevent proper enforcement of ethical principles.
Interestingly, the majority states that the district court should give appropriate weight to the continued generation of work in the face of an obvious basis for disqualification. (Maj. Op. at 205.) In this case, Foley & Lardner was well aware of the conflict of interest situation when, two days after the complaint was filed, it sent a letter requesting plaintiffs consent to its continued representation of defendants:
[W]e have concluded that Foley & Lardner as a firm can represent [defendants] providing that the Mortgage Trust consents to our representation of the defendants.
[W]e have concluded that, with the consents of the Mortgage Trust and each of the defendants, there is no ethical or other prohibition that precludes us from representing the defendants in the action.
Quoted at 422 F.Supp. at 495 (emphasis added). While I do not believe Foley & Lardner had no “good faith justification” for continuing to represent defendants, the fact that the firm was aware of the significant ethical problems lessens the weight of the majority’s “moratorium” point in this case.
. In response to this dissenting opinion, the majority noted that plaintiff did not request injunctive relief to prevent the production of the work product pending resolution of the disqualification motion. (Maj. Op. at 210.) To the extent this should be a controlling factor, I note that there are indications in the record that both plaintiff and defendants assumed duplication of all Foley & Lardner work product was a possible consequence of disqualification. (R: 36:2.)