Can a lawyer who handled a company's workers' compensation defense later represent those same employees in new compensation claims against the company?

Plain-English summary

The inquirer had been the attorney for a corporation, and part of his work was defending the corporation in workers' compensation matters. After leaving the corporation's employ, he began representing employees who had earlier made claims against the corporation while he was its attorney and who now sought additional compensation for increased disability from the same injuries. He asked whether this was proper.

The Committee concluded that it was not. As it put it, "to state the question is to indicate the answer." Because the lawyer had previously represented the corporation in proceedings involving these same employees and had had access to the corporation's files dealing with their injuries, he could not now represent those employees in actions against his former client. The Committee rested the result on its earlier Opinions 6 and 97.

Currency note

This opinion was issued in June 1971, 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 replacement of the Canons/DRs by the Rules of Professional Conduct and all later revisions. The former-client conflict principle it applied 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 Treat this page as historical context, not current guidance.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 take new cases against a former client?

A: Not where the new matter is substantially connected to the prior representation. Here the Committee said the lawyer could not represent employees against the corporation he had defended on the same injuries.

Q: Why did having access to the corporation's files matter?

A: The Committee stressed that the lawyer had had access to the corporation's files on the employees' injuries, which is why representing the employees on the same injuries against the former client was improper.

Background and rules framework

The opinion applied the former-client conflict principle, the rule that a lawyer who has represented a client may not later act against that client in a matter connected to the prior representation. In current New Jersey terms the analysis falls under RPC 1.9 (duties to former clients).

Citations and references

Other opinions cited:

• NJ ACPE Opinion 6, 86 N.J.L.J. 718 (1963)
• NJ ACPE Opinion 97, 89 N.J.L.J. 507 (1966)

See also

• NJ ACPE Op. 234: Defending a Former Client's Codefendant
• NJ ACPE Op. 251: Former Associate Defending a Client in a Firm Fee Suit

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp211-1.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.

94 N.J.L.J. 483, June 3, 1971

OPINION 211

Conflict of Interest - Action Against Former Client

The inquirer was formerly the attorney for a corporation. Some of his duties consisted of representing the corporation in workmen's compensation matters. Recently, having left the employ of the corporation, he has been representing employees of the corporation who had previously made claims against the corporation while he was the corporation's attorney and are now seeking additional compensation on the grounds of increased disability from the same injury. The attorney asks whether it is proper for him to represent these employees under these circumstances.

To state the question is to indicate the answer. The attorney has previously represented the corporation in proceedings involving these same employees and has had access to the corporation's files dealing with the employees' injuries. Clearly he may not now represent these same employees in actions against his former client. See our Opinions 6, 86 N.J.L.J. 718 (1963), and 97, 89 N.J.L.J. 507 (1966).