concurring in part and dissenting in part.
The majority opinion highlights the troubling factual inconsistencies that confront us in this case. I agree with the majority that the case must be remanded to the District Court for further factual inquiry. I also agree with the majority that if Heis-kell, Donelson lawyers represented opposing parties in the state court action, the presumption that confidences have been shared should be irrebuttable.
I cannot agree, however, with the majority’s resolution of the factual problem. The majority has essentially made alternative decisions — if the District Court finds one set of facts to be true, we affirm; if the District Court finds another set of facts to be true, we reverse and remand. These decisions are premature. While the legal rationale for both decisions may be sound, I do not think it is good judicial practice to decide an appeal when we do not know what the facts are. The problem with this case is that we do not have enough facts to make a concrete, principled decision. Until more facts are on the record, we should not decide the issue whether Heiskell, Donel-son will be allowed to rebut the presumption that confidences have been shared. We should decline at this point to adopt the rebuttable presumption test of the Seventh Circuit in a case in which we may not be confronted with the issue.