dissenting:
I dissent. In my opinion the district court’s finding that further representation of Country Style Donuts, Inc., and Country Style Donuts, Ltd. by the Maguire, Voorhis and Wells law firm would involve an appearance of impropriety under Canon 9 of the Code of Professional Ethics was not clearly erroneous.
Both Mr. Builder and Mr. Bogner were associated as attorneys with the Maguire, Voorhis and Wells law firm when in 1974 Mr. Cossette discussed with Builder his new donut shop business, discussed the type of business entity through which Cossette should manage his new business and also expressed to Builder some dissatisfaction with the Country Style Donut franchises. Recognizing a conflict of interest since the Maguire law firm was then representing Country Style Donuts, Builder suggested that Cossette consult with Bogner — an associate of the same law firm! Bogner conferred with Cossette upon several occasions about whether the Country Style Donut contract was usurious and about Cossette’s general dissatisfaction with the Country Style Donuts contract. Bogner was advised by Builder that he had researched the usury question and that the contract was not subject to the usury laws. Bogner relayed this information to Cossette. The Maguire firm’s own internal billing files disclosed that the firm had done legal work for Cos-sette on the usury matter.
Builder testified that he “didn’t think in terms of the fact that he [Cossette] was being represented by Bogner and [that Builder] was on a different side.” Neither Builder nor Bogner recommended that Cos-sette consult an attorney not affiliated with the Maguire firm. Neither explained to Cossette the ethical implications of a law firm’s representing two clients with imminent potentially conflicting interests.
This conflict surfaced when Cossette sued Country Style Donuts in January 1976, alleging violations of the federal antitrust laws, breach of contract, illegal contract, fraud and breach of a fiduciary relationship.1 The district court, after hearing this evidence, held that the Maguire firm’s continued representation of Country Style Donuts in the litigation initiated by Cossette would create the appearance of impropriety-
A per se disqualification rule exists as to an attorney who appears on behalf of a former client’s current adversary. The *532standard which triggers the application of the rule requires a two-fold inquiry. Wilson P. Abraham Const. v. Armco Steel Corp., 559 F.2d 250, 252 (5th Cir. 1977). The first question is whether there was in fact an attorney-client relationship between the party seeking disqualification (Cossette) and the attorney in dispute (the Maguire firm). As outlined above, this was evident. The fact, emphasized by the majority, that Bogner had withdrawn from the Maguire firm before this litigation was instituted, is entirely immaterial to the issue of the conflict that existed when Bogner was in the firm. The Maguire firm’s disqualification stems from the relationship that existed when Builder was representing Country Style Donuts and Bogner was representing Cossette and while both Builder and Bogner were in the same law firm. Once the attorney-client relationship showing is made, the only other question is whether the matters involved in the present litigation are substantially related to the matters of the former relationship. This is also evident. As we stated in Wilson P. Abraham Const, v. Armco Steel Corp., supra :
The law in this Circuit is fairly straightforward. This Court has recently reaffirmed with regards to attorney disqualification that a former client seeking to disqualify an attorney who appears on behalf of his adversary, need only to show that the matters embraced within the pending suit are substantially related to the matters or cause of action wherein the attorney previously represented him. In re Yarn Processing Patent Validity Litigation, 530 F.2d 83 (5th Cir. 1976); T. C. Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265 (S.D.N.Y.1953). This rule rests upon the presumption that confidences potentially damaging to the client have been disclosed to the attorney during the former period of representation. The Court may not even inquire as to whether such disclosures were in fact made or whether the attorney in fact is likely to use the damaging disclosures to the detriment of his former client. Emie Industries, Inc. v. Patentex, Inc., 478 F.2d 562 (2nd Cir. 1973). The inquiry is limited solely to whether the matters of the present suit are substantially related to matters of the prior representation, and this is because this Court recognizes that in order to aid the frank exchange between attorney and client, it is necessary to preclude even a possibility that information given in confidence by a former client will ever be used without that client’s consent. The law in this Circuit is, of course, little more than a reinforcement of the Code of Professional Responsibility, Ethical Considerations, and Disciplinary Rules, promulgated by the American Bar Association and adopted by the Supreme Court of Louisiana effective July 1, 1970. See Canons 4, 5 and 9; Ethical Considerations 4-1, 4-4, 4-5 and 4- 6; and Disciplinary Rules 4-101(B) and
5- 105.
Confidential exchanges were required to be shown in Wilson P. Abraham Const. v. Armco Steel Corp., supra, but that was because that case did not involve a former client — only a co-defendant of a former client. Here the relationship of Cossette with the Maguire firm was as a client, and Wilson P. Abraham Const, v. Armco Steel Corp., supra, teaches that under such circumstances confidential exchanges are presumed.
In my opinion the Maguire law firm had deliberately and knowingly placed itself in a position of representing conflicting interests, and disqualification was mandated by Canon 9 of the Code of Professional Ethics.
I dissent.
. The fraud and breach of contract claims were dismissed by the district court.