(concurring):
I concur in Judge Timbers’ carefully considered opinion. The district court’s conclusion that Mr. Meeker’s prior relationship with Cook supported an inference that he might have conducted at least a limited investigation into Cook’s weighing and loading procedures has evidentiary support, including Meeker’s communications with Cook personnel (Reams and Ireland), his letter to Reams of September 26, 1973, and the hand-written notes found in the Hill-Rivkins file. In view of the extent of Meeker’s prior involvement in substantially related matters and the probability that he received confidential information in the pri- or representation, it was hardly an abuse of discretion to disqualify him from representing the plaintiffs in the present action.
*741However, I am reluctant to endorse the district court’s unqualified statement to the effect that once a substantial relationship is shown between the subject matters of the two representations and that the lawyer’s personal role in the former representation was more than peripheral, the presumption that the attorney had access to confidential information in the prior relationship is “ir-rebuttable,” 422 F.Supp. at 1059-60. On the contrary, we only recently in Silver Chrysler Plymouth, Inc. v. Chrysler Motor Corp., 518 F.2d 751, 754 (2d Cir. 1975), reaffirmed our earlier holding that the presumption was rebuttable, stating:
“Thus, while this Circuit has recognized that an inference may arise that an attorney formerly associated with a firm himself received confidential information transmitted by a client to the firm, that inference is a rebuttable one. Laskey Bros, of W. Va., Inc. v. Warner Bros. Pictures, 224 F.2d 824, 827 (2d Cir. 1955), cert. denied, 350 U.S. 932, 76 S.Ct. 300, 100 L.Ed.2d 814 (1956); United States v. Standard Oil Co., 136 F.Supp. 345, 364 (S.D.N.Y.1955). And in Laskey, the court cautioned that:
“It will not do to make the presumption of confidential information rebut-table and then to make the standard of proof for rebuttal unattainably high. This is particularly true where, as here, the attorney must prove a negative, which is always a difficult burden to meet.
“224 F.2d at 827. The importance of not unnecessarily constricting the careers of lawyers who started their practice of law at large firms simply on the basis of their former association underscores the significance of this language. See generally, Note, Unchanging Rules in Changing Times: The Canons of Ethics and Intra-firm Conflicts of Interest, 73 Yale L.J. 1058 (1964).”
While I appreciate that a “former client-present adversary” should not unnecessarily be put to a Hobson’s choice of revealing confidences in order to obtain a disqualification, its interest may be outweighed in some cases by other interests at stake, including not only the investment of the attorney’s present client but the reputation of the attorney himself, which may needlessly suffer unless he is given an opportunity to clear his name. Disqualification of an attorney may threaten an undeserved and unfair stigma that could result in great professional harm, particularly for one who is on the threshold of his career. For these reasons I believe that the district court should have the discretionary authority to permit the attorney to dispel a false impression that might arise if the presumption were held to be irrebuttable.
In some instances this dilemma might be resolved, as Judge Timbers suggests, by giving a narrow interpretation to the words “substantial relationship” and permitting disqualification only when the issues are identical or essentially the same. However, we have not hesitated in the past to exalt the “appearance of impropriety” over actual acquisition of confidential information. See, e. g., General Motors Corp. v. City of New York, 501 F.2d 639, 649-52 (2d Cir. 1974).
The essential issue, of course, is whether an impression is created that the attorney may have gained confidential information from his prior relationship that is usable against his former client. In some cases, even though the subject matter of the two relationships may appear to be substantially the same, the attorney may also be able to show that he gained no confidential information at all from the earlier representation. It would be unfair to preclude such a showing by clinging to an irrebuttable presumption, For this reason I believe that the district court should have the discretionary power in an appropriate case to permit the door to be opened for rebuttal of the presumption. I am confident that in such rather rare cases the court will devise appropriate means, including use of in camera or other protective devices, to safeguard the interests of the former client.