dissenting.
Although I agree with much of the majority opinion, my disagreement with one aspect of the opinion causes me to reach a different conclusion.
Regardless of whether or not, in the usual case, we should defer to the district court’s exercise of discretion in matters concerning attorney disqualification, I agree that in this case the district court judge erred in his application of the “substantially related” test. I further agree that the 2V4 hours spent by Attorney Cook, while a member of the Hume firm, on the “microbial rennet” matter for Defendant Baxter were substantially related to the subject matter of the present litigation and that it is appropriate to presume that he received confidences in connection with that work. I do not agree, however, that these facts preclude the Hume firm, which Cook has now left, from representing the plaintiff, Novo, in this action.
It is important, at the outset, to make clear what the case is not. This is not a case where a party’s former attorney is now representing the adverse party. The relevant part of Baxter’s work with the Hume firm was handled by Granger Cook, the attorney of its choice. Baxter’s work is still handled by Granger Cook. Granger Cook undoubtedly gained confidences from Baxter; there is no danger that he will now reveal those confidences to an adversary of Baxter’s. His loyalty to his client is not questioned in this matter.
What is questioned here is whether Cook’s former associates must now be barred from representing Baxter’s adversary, Novo, because of their association with Cook during the 2)4 hours he spent on a substantially related matter for Baxter. He may possibly have shared confidences he gained in those 2)4 hours with the other members of the law firm, and I can agree with the policy choice to impose a presumption that he did so. I disagree, however, with the majority’s conclusion that the presumption is an irrebuttable one.
Although the majority characterizes affidavits on the two sides as conflicting, such is not the case. The carefully-worded affidavit of Mr. Cook, who of course was in a position to know exactly what, if any, confidences were shared, never asserts that confidences relating to the “microbial rennet” work were shared with other members of the firm. In contrast, the affidavits of all the remaining members of the Hume firm positively assert that the remaining members of the firm never discussed the microbial rennet work with Cook or anyone else in the firm and did not work on the subject themselves. The appellant’s brief implicitly acknowledges that there is no conflict in the affidavits, asserting instead that the Hume firm affidavits are an attempt to “rebutt [sic] the rule of law that all confidences possessed by one partner must be imputed to all other partners.” Appellant’s Reply Brief at 6. In the case of Silver *194Chrysler Plymouth, Inc. v. Chrysler Motor Corp., 518 F.2d 751 (2d Cir. 1975) the Second Circuit observed that
“[the party seeking disqualification] was here in a position conclusively to refute [the opposing attorney’s] position that his role in these cases had been non-existent or fleeting. . . . [T]he issue was capable of proof. [The party seeking disqualification] instead chose to approach the matter in largely conclusory terms.” Id. at 757.
There is even less doubt in this case since Cook does not allege even in conclusory terms that relevant confidences were shared. The majority’s decision, then, must rest entirely on a holding that the presumption of shared confidences is irrebuttable.
The majority acknowledges that this circuit has never held the presumption that confidences were shared with other members of the firm to be irrebuttable (opinion at-). But the majority now holds that Canon 9 requires this result. Canon 9, of course, cautions that “A Lawyer Should Avoid Even the Appearance of Professional Impropriety.” By its very nature the Canon requires a careful analysis of the circumstances of each individual case. As the Second Circuit noted
“When dealing with ethical principles, it is apparent that we cannot paint with broad strokes. The lines are fine and must be so marked. Guideposts can be established when virgin ground is being explored, and the conclusion in a particular case can be reached only after a painstaking analysis of the facts and precise application of precedent.” Silver Chrysler Plymouth v. Chrysler Motor Corp., 518 F.2d 751, 753, n. 3 (2nd Cir. 1975) quoting United States v. Standard Oil Company, 136 F.Supp. 345, 367 (S.D.N.Y.1955).
There may be cases in which Canon 9 would render inquiry into the fact of shared confidences unseemly. But here, where the party seeking disqualification is in a position to know exactly what confidences were shared and what conflicts there may be and yet fails to allege, even in general terms, that any were shared or exist, it is appropriate to consider the presumption a rebuttable one. On the record before us it has clearly been rebutted. I would not deny Novo the counsel of its choice and would affirm the decision of the district court.