Ezel / Ethics Opinions / NELAC

Could a Nebraska lawyer defend a friend against an assault complaint made by the lawyer's former client?

Short answer Yes, where the former matter was wholly unrelated, but the lawyer still had to preserve all information obtained from the former client.
Bar
NELAC
Issued
1976
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1976. Ask about yours and see what the current Nebraska Rules of Professional Conduct say for your facts, with citations.

Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A lawyer asked whether the lawyer's office could defend a close friend against a criminal assault charge initiated by a former client of the office.

The committee assumed that the former client's earlier problems had no possible connection to the alleged assault. On that assumption, it concluded that neither the lawyer nor another firm member was disqualified.

Former DR 4-101(B)(1) and the attorney-client privilege still required the lawyer to keep all information obtained about the former client's problems inviolate. The absence of a bill for the earlier services did not change the former-client analysis.

Relying on Bellair v. Dudden and Adams v. Adams, the committee stated the general rule that later representation against a former client was not barred when the required duties did not conflict with those involved in the first employment.

Currency note

This opinion was issued in 1976, before Nebraska's adoption of the 2005 Rules of Professional Conduct. Subsequent former-client, confidentiality, privilege, imputation, and conflict rules or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.

Common questions

Q: Did the former matter have any connection to the assault charge?

A: The committee expressly assumed there was no possible connection between the former client's earlier problems and the alleged assault.

Q: Could another member of the lawyer's firm take the defense?

A: Yes. Under the stated assumption, the opinion found neither the lawyer nor a firm member disqualified.

Q: Did it matter that the office never billed the former client?

A: No. The committee said the absence of a bill was immaterial.

Q: What continuing duty remained?

A: The lawyer had to hold inviolate information obtained about the former client's problems.

Background and rules framework

Former DR 4-101(B)(1) protected client confidences and secrets. The committee paired that duty with Nebraska decisions allowing later adversity when the new duties did not conflict with the first employment.

Citations and references

Former Nebraska Code of Professional Responsibility:

  • DR 4-101(B)(1)

Cases:

  • Bellair v. Dudden, 194 Neb. 5
  • Adams v. Adams, 156 Neb. 778

Other authority:

  • Henry S. Drinker, Legal Ethics, page 112

See also

Source

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Nebraska Ethics Advisory Opinion for Lawyers No. 76-8

AS A GENERAL RULE, AN ATTORNEY IS NOT BARRED FROM REPRESENTING A SUBSEQUENT CLIENT AGAINST A FORMER CLIENT IF THE DUTIES REQUIRED OF HIM DO NOT CONFLICT WITH THOSE INVOLVED IN THE FIRST EMPLOYMENT.

FACTS

You have inquired as to whether or not you may properly defend your close friend against a criminal assault charge instituted by a former client of your office, under the circumstances related in your letter.

Based upon the facts set forth in your letter, it is the opinion of The Advisory Committee that you or a member of your firm are not disqualified to assume this representation. In doing so you must, of course, hold inviolate any information which you obtained with respect to the problems the former client may have had, otherwise you would be in violation of DR 4-101(B)(1) of the Code as well as of the statutory provisions covering attorney-client privilege. In reaching this conclusion, the Committee assumes that there is no possible connection between said past problems and the facts giving rise to the alleged assault.

The fact that your office did not bill the former client for services is immaterial--see Drinker, Legal Ethics, page

  1. The Nebraska Supreme Court has laid down the
    general rule governing the situation covering representation against a former client, viz, an attorney is not barred from representing a subsequent client against a former client if the duties required of him do not conflict with those involved in the first employment. Bellair v. Dudden, 194 Neb. 5; Adams v. Adams, 156 Neb. 778.

Since the assumption is that the circumstances surrounding the events leading to the present action have no connection whatsoever with the information you are privy to by reason of your former employment by the complaining party, your situation appears to fall within the scope of the rule above quoted.

Nebraska Ethics Advisory Opinion for Lawyers No. 76-8

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