Can a lawyer bring a negligence suit against a person he once defended in an unrelated, now-dismissed municipal court case?

Plain-English summary

An attorney asked whether he could undertake a negligence action against an individual he had formerly represented in an unrelated matter, the defense of an assault-and-battery charge in municipal court, which he believed had been dismissed before the negligence case was offered to him. Assuming the municipal-court matter had been dismissed and that the parties and circumstances of the two matters were entirely different, the Committee concluded the attorney could undertake the negligence action without violating Canons 6 or 37.

The Committee noted that in all its prior opinions on this subject there had been some connection, in parties or subject matter, between the prior representation and the new matter (citing Opinion 128). It observed, citing Drinker, that a lawyer may bring suit against a former client where the prior representation has ended and the matter does not involve confidential communication, and that the mere fact of having earlier represented the adverse party does not by itself foreclose the new engagement. The test is whether the policy expressed in Canons 6 and 37 would be violated, and on these facts it would not.

Currency note

This opinion was issued in May 1969, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), so the Committee was applying the Canons of Professional Ethics (Canons 6 and 37) and its own prior opinions. It also predates the 1984 Rules of Professional Conduct and all later revisions. The duty to former clients, including the substantial-relationship test, is now treated under RPC 1.9. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a lawyer sue someone he previously defended in a different case?

A: Yes, where the matters are entirely unrelated. The Committee held the attorney could bring the unrelated negligence action against a former municipal-court client without violating Canons 6 or 37.

Q: What is the test for whether suing a former client is permissible?

A: The Committee said the test is whether the policy expressed in Canons 6 and 37 would be violated, which turns on whether the prior representation has ended and whether the new matter involves confidential communication.

Background and rules framework

The opinion applied Canons 6 and 37 of the Canons of Professional Ethics, distinguishing a disqualifying former-client conflict from suit on a wholly unrelated matter involving no confidences, citing Opinion 128 and Drinker. In current New Jersey terms the duty to former clients is governed by RPC 1.9.

Citations and references

Other authorities:

• Canons of Professional Ethics, Canons 6 and 37
• Drinker, Legal Ethics 112 (1953)
• NJ ACPE Opinion 128, 91 N.J.L.J. 309 (1968)

See also

• NJ ACPE Op. 158: Suing a Former Client in a Wholly Unrelated Matter
• NJ ACPE Op. 153: Representing Heirs Against a Former Client Administrator
• NJ ACPE Op. 211: Action Against a Former Corporate Client

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp154-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

92 N.J.L.J. 353, May 29, 1969

OPINION 154

Conflict of Interest Suing Former Client In Unrelated Matter

An attorney inquires whether he may properly undertake a negligence action against an individual whom the attorney had formerly represented in an unrelated matter, specifically, the defense of an assault and battery charge made against him in a municipal court. The inquirer suggests that he believes the municipal court matter was dismissed before the negligence case was tendered to him.

Assuming that the municipal court matter has been dismissed and that the parties and circumstances involved in the municipal court matter are entirely different from those which gave rise to the negligence matter, the Committee is of the opinion that the attorney may undertake the negligence action and that in so doing he does not violate Canons of Professional Ethics, Canons 6 or 37.

In all our prior opinions upon this general subject matter there has been some connection between the prior representation and the new matter, either as to parties or subject matter. See, for example, Opinion 128, 91 N.J.L.J. 309 (1968). However, it has been held elsewhere that a lawyer may bring a suit against a former client if the representation of the former client has been ended and the matter does not involve confidential communication. Drinker, Legal Ethics 112 (1953). The mere fact that the attorney had at an earlier time represented the adverse party does not, in itself, foreclose the attorney from undertaking the new matter. The test is whether the policy expressed in Canons 6 and 37 would be violated. Under the circumstances here presented, it does not appear that either canon would be violated.