Can a lawyer represent a workers' compensation claimant against an employer the lawyer's office also represents in other matters?

Plain-English summary

An attorney asked whether it is a conflict of interest to represent a workmen's compensation petitioner when his office has represented the employer in the past and/or continues to represent the employer in other capacities. The inquirer recognized that ordinarily this would be a clear conflict, but raised the question because of the unique nature of workmen's compensation proceedings, where the dealings are directly and exclusively with the insurance company rather than the employer and there is no question of liability.

The Committee drew on its Opinion 165, which had stated that the Canons make it clear there are not two standards, one for privately retained counsel and another for counsel paid by an insurance carrier, and that counsel for the carrier may not take a position adverse to its insured. Reasoning that there are likewise not dual standards for petitioner's counsel, the Committee concluded it would be improper for the inquirer to represent a petitioner against a respondent whom he continues to represent, and that such dual representation violates Canon 6. It added that if the attorney has ended his professional representation of the client, he may properly undertake an action against the former client where the matter does not involve confidential communications and there has been no connection between the prior representation and the new matter; but if the former client has any reason to feel aggrieved, the need to maintain proper public relations for the bar and avoid the appearance of wrongdoing will normally cause the attorney to refuse employment adverse to the former client.

Currency note

This opinion was issued in December 1970, 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 and its own prior opinions. It also predates the 1984 Rules of Professional Conduct and all later revisions. The concurrent-conflict and former-client principles it applied are now treated under RPC 1.7 and 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 Treat this page as historical context, not current guidance.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 take a comp claim against a current employer-client?

A: No. The Committee held it improper to represent a workmen's compensation petitioner against an employer the attorney continues to represent, finding it violates Canon 6.

Q: Does the comp insurer's role change the analysis?

A: No. The Committee rejected the idea of dual standards for carrier-paid and privately retained counsel, applying the same conflict rule.

Q: What if the lawyer no longer represents the employer?

A: He may act against a former client where the matter involves no confidences and no connection to the prior work, though an aggrieved former client and the appearance of wrongdoing will normally counsel against it.

Background and rules framework

The opinion applied Canon 6 of the Canons of Professional Ethics and the no-dual-standards reasoning of Opinion 165 to bar representing a comp claimant against a current employer-client, while restating the former-client exception and its appearance limits. In current New Jersey terms the analysis falls under RPC 1.7 and RPC 1.9.

Citations and references

Rules of Professional Conduct:

• Canon 6, Canons of Professional Ethics (conflicting interests), as in effect 1970; now MR 1.7 / 1.9 and NJ RPC 1.7 / 1.9

Other opinions cited:

• NJ ACPE Opinion 165, 92 N.J.L.J. 831 (1969); Opinion 6, 86 N.J.L.J. 718 (1963); Opinion 154, 92 N.J.L.J. 353; Opinion 158, 92 N.J.L.J. 641 (1969); Opinion 128, 91 N.J.L.J. 309 (1968)

Other authorities:

• Drinker, Legal Ethics 112 (1953)

See also

• NJ ACPE Op. 211: Acting Against a Former Corporate Client
• NJ ACPE Op. 216: Representing a Wife Against a Former Husband-Client
• NJ ACPE Op. 194: Representing a Client While Also Representing the Witnesses Against Him

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp190-1.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.

93 N.J.L.J. 837, December 3, 1970

OPINION 190

Conflict of Interest Representing Workmen's Compensation Petitioner and Employer

An attorney inquires whether or not it is a conflict of interest to represent a workmen's compensation petitioner when the attorney's office has represented the employer in the past and/or continues to represent the employer in other capacities. The inquirer recognizes that "in an ordinary situation this would be a clear case of conflict of interest" but he presents the question due to "the unique nature of workmen's compensation proceedings when the dealings are directly and exclusively with the insurance company and not with the defendant, employer, and there is no question of liability."

In our Opinion 165, 92 N.J.L.J. 831 (1969), we stated: ...The Canons of Professional Ethics make it pellucid that there are not two standards, one applying to counsel privately retained by a client, and the other to counsel paid by an insurance carrier.

Adherence to this duty forbids the attorney for the carrier from taking a position adverse to its insured. Since there are not dual standards for respondent's counsel, there are not dual standards for petitioner's counsel. It would therefore be improper for the inquirer to represent a petitioner in a workmen's compensation case against a respondent whom he continues to represent. Such dual representation violates Canon 6, Canons of Professional Ethics. Cf. N.J. Advisory Committee on Professional Ethics, Opinion 6, 86 N.J.L.J. 718 (1963).

On the other hand, if the attorney has ended his professional representation of the client, he may properly undertake an action against the former client if the matter does not involve confidential communications and there has been no connection between the prior representation and the new matter. N.J. Advisory Committee on Professional Ethics, Opinion 154, 92 N.J.L.J. 353 (1959), Drinker, Legal Ethics (1953) 112.

But if the former client has any reason to feel aggrieved, the necessity for maintaining proper public relations for the bar and of avoiding the appearance of wrongdoing will normally cause the attorney to refuse to accept employment in a capacity which is adverse to the interests of the former client. N.J. Advisory Committee on Professional Ethics, Opinion 6, 86 N.J.L.J. 718 (1963), Opinion 158, 92 N.J.L.J. 641 (1969) and Opinion 128, 91 N.J.L.J. 309 (1968) with opinions cited therein.