Can a law firm represent a client against people it previously represented only in an unrelated routine matter such as a change of name?

Plain-English summary

A corporation, whose principal and majority stockholders were D.B. and his wife J.B., sued a former employee for money loaned during his employment. The defendant was represented by law firm F, which filed an answer and counterclaim. In 1964, firm F had represented D.B., J.B., and their three children in a successful change-of-name proceeding. The inquiry asked whether firm F had a conflict of interest in now opposing the B's interests, and if so, what should be done.

The Committee restated Canon 6 and its Opinion 6, recognizing that taking a case against a former client raises concerns of both confidentiality and the appearance of wrongdoing, and that an attorney should refuse employment adverse to a former client where the former client may feel aggrieved. But it also noted that the mere fact a lawyer once advocated different views of law or fact will not by itself disqualify him; Canon 6 does not apply where two matters are wholly unrelated, citing Drinker and ABA Opinions 71, 72, and 262.

Applying that distinction, the Committee found the present situation different from a true conflict. Firm F's prior work for the B's was solely a routine change-of-name proceeding, while the present action concerned money loaned during an employment relationship, an entirely different matter that could not involve any confidences disclosed in the change-of-name proceeding. The Committee concluded it saw no conflict of interest on the part of firm F based on the facts presented.

Currency note

This opinion was issued in October 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 (Canon 6) and its own prior opinions. It also predates the 1984 Rules of Professional Conduct and all later revisions. The duty to a former client, 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 Treat this page as historical context, not current guidance.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: Is it always a conflict to sue someone the firm once represented?

A: No. The Committee held there is no conflict where the prior and present matters are wholly unrelated, so no confidence from the earlier matter could be involved.

Q: What made the prior representation here "unrelated"?

A: The firm's only prior work for the now-adverse parties was a routine change-of-name proceeding, while the present case concerned money loaned during an employment relationship, an entirely different subject with no shared confidences.

Q: Does the former client's possible sense of grievance change the result?

A: The Committee recognized that an attorney should avoid even the appearance of wrongdoing where a former client may feel aggrieved, but found that concern not triggered here because the matters were wholly unrelated.

Background and rules framework

The opinion applied Canon 6 of the Canons of Professional Ethics and its Opinion 6, distinguishing a disqualifying former-client conflict from representation in a wholly unrelated matter where no confidences are implicated. In current New Jersey terms the duty to former clients is governed by RPC 1.9 and its substantial-relationship analysis.

Citations and references

Other authorities:

• Canons of Professional Ethics, Canon 6 (conflicting interests)
• Drinker, Legal Ethics 114 (1953)
• ABA Committee on Professional Ethics and Grievances, Opinions 71, 72 (1932) and 262 (1944)
• NJ ACPE Opinion 6, 86 N.J.L.J. 718 (1963)

See also

• NJ ACPE Op. 155: A Legal Services Corporation Suing Its Predecessor's Former Client
• NJ ACPE Op. 211: Action Against a Former Corporate Client
• NJ ACPE Op. 531: Opposing a Former Partner's Corporate Client in an Unrelated Divorce

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp158-1.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. 641, October 2, 1969

OPINION 158

Conflict of Interest Suing Former Client

Inquiry has been made as to whether there is a conflict of interest on the part of the law firm here involved and, if so, what, if anything, should be done about it. There is now pending an action started by the inquirer as attorney for the plaintiff corporation against a former employee for monies loaned him by the corporation during the period of his employment, the employee having voluntarily quit last January and having immediately been employed by a competitor of plaintiff. The defendant in the action is represented by law firm, F, which filed an answer and counterclaim. The principal and majority stockholders of the plaintiff corporation are D.B. and his wife, J.B. In 1964 law firm F were the attorneys for them and their three children in a successful change of name proceedings. At that time D.B. was in the employ of the present employer of the defendant, which employer, through its New York attorney, referred Mr. and Mrs. B. to the present defendant's attorneys, F.

The applicant states that he believes that the situation involves Canons of Professional Ethics, Canon 6, concerning conflict (or possibility of conflict) of interests and he states further that the only opinion this Committee has ever published on this subject is our Opinion 6, 86 N.J.L.J. 718 (1963).

It is true that Canon 6 states that it is unprofessional for a lawyer to represent conflicting interests and the obligation to represent his client with undivided fidelity is ever present and the lawyer is not to divulge his secrets or confidences. It also forbids the lawyer to accept retainers or employment from others in matters adversely affected by any interests of the client with respect to which confidence has been reposed.

In our Opinion 6 we indicated that it would be unprofessional and improper for the attorney there involved to become involved in an action against his former client and we stated that to do otherwise would require the attorney to assert an interpretation of or a claim under an agreement which he had previously approved and, accordingly, the attorney should not attempt to nullify his own work.

We stated then, and we repeat here, that irrespective of any actual detriment that the client might suffer, he might naturally feel that he had in some way been wronged when confronted by an action against him by the same attorney whom he had previously employed, and we definitely feel that to maintain public confidence in the bar, it is necessary not only to avoid actual wrongdoing but even the appearance of wrongdoing.

The impropriety of taking a case against a former client is not based solely on necessity for disclosure of confidential communication. If the former client has any reason to feel aggrieved, the necessity of maintaining proper public relations for the bar and of avoiding the appearance of wrongdoing should cause the attorney to refuse to accept employment in a capacity which is adverse to the interests of the former client.

The mere fact that under a prior retainer the attorney has advocated views of the law and facts different from those on which his present client rests his case will not ipso facto disqualify him. See Drinker, Legal Ethics 114 (1953). It is only when there is no conflict of interests that Canon 6 does not apply, as where two matters are wholly unrelated. See A.B.A. Comm. on Professional Ethics and Grievances, Opinions 71, 72 (1932) and 262 (1944).

In the inquiry now before us, however, a different situation has presented itself. In 1964 the law firm involved were the attorneys for the applicant and their three children in a successful change of name proceeding and nothing else. The present action involves a question of monies loaned during a period of employment which is entirely different and could under no circumstances present any breach of confidences which were previously given to the attorneys when they handled a routine change of name proceeding and there appeared to be no secrets and confidences disclosed to the attorneys which could in any way be involved in the present controversy or which had any relation to the prior engagement. We see no conflict of interests on the part of the law firm mentioned based upon the facts as they are presented in this inquiry.