Can a lawyer who once defended one co-defendant now represent the other co-defendant, whose interests are adverse, on a related charge?

Plain-English summary

A and B were co-defendants in an indictment for possession of stolen property, and their interests were adverse. Attorney Z had previously represented B on a "like, but in no way related," charge. The question was whether Z or his associate could now represent A.

The Committee reviewed its prior former-client opinions (42, 97, 154, 158). From Opinion 42, a lawyer should never accept a retainer adverse to a former client without taking extreme care that the new matter will not be affected by confidential information from the former retainer. From Opinion 97, the test is not whether the lawyer appeared against the party before, but whether the new retainer will require him to do anything that would injuriously affect his former client in a matter in which he represented him, and that both wrongdoing and its appearance must be avoided. Opinions 154 and 158 allowed suits against a former client only where the new matter was entirely unrelated and involved no confidential communications. Applying these, the Committee concluded it would be unwise for Z to undertake A's representation unless he is convinced beyond doubt that the prior representation of B and the present charge are unrelated, that the prior representation will not adversely affect B's interests, that representing A will not call on confidences obtained from B, and that the former representation will not prevent him from representing A with undivided fidelity. The same applies to any attorney associated with Z.

Currency note

This opinion was issued in 1972, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. The former-client and confidentiality principles it applied are now treated under RPC 1.9 and RPC 1.7. Treat this page as historical context, not current guidance.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 ever represent a former client's adverse codefendant?

A: Under this opinion, only if convinced beyond doubt that the matters are unrelated, no confidences are implicated, and undivided fidelity to the new client is possible.

Q: Does it matter that the prior charge was described as unrelated?

A: The Committee required certainty "beyond doubt" that the prior and present matters are unrelated; a description alone was not enough to clear the lawyer.

Q: Does the restriction extend to the lawyer's associates?

A: Yes. The Committee said all that it said applies to any attorney associated with attorney Z.

Background and rules framework

The opinion applied the former-client conflict test and confidentiality duty (then DR 4-101 and the Committee's prior opinions) to a lawyer asked to represent a former client's adverse codefendant. In current New Jersey terms the analysis falls under RPC 1.9 and RPC 1.7.

Citations and references

Rules of Professional Conduct:

• Former-client conflict and confidentiality principles as in effect 1972; now MR 1.9 / 1.7 and NJ RPC 1.9 / 1.7

Other opinions cited:

• NJ ACPE Opinions 42, 87 N.J.L.J. 285 (1964); 97, 89 N.J.L.J. 507 (1966); 154, 92 N.J.L.J. 353 (1969); 158, 92 N.J.L.J. 641 (1969)
• ABA Committee on Professional Ethics and Grievances Opinion 165 (1936)

See also

• NJ ACPE Op. 246: Switching Sides After Consulting an Adversary
• NJ ACPE Op. 252: A Former Prosecutor Now Representing the Man He Convicted
• NJ ACPE Op. 251: A Departed Associate Fighting the Firm's Own Fee

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp234-1.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.

95 N.J.L.J. 253, March 23, 1972

OPINION 234

Conflict of Interest Representing Codefendant of Former Client

We are informed that A and B are codefendants in an indictment charging them with possession of stolen property and that their interests are adverse. Defendant B was previously represented by attorney Z "on a like, but in no way related, charge." The question for determination is whether attorney Z or his associate may, with propriety, now represent A.

We have explored the factors to be considered in determining whether an attorney should accept a retainer adverse to a former client in N.J. Advisory Committee on Professional Ethics, Opinions, 42, 87 N.J.L.J. 285 (1964); 97, 89 N.J.L.J. 507 (1966); 154, 92 N.J.L.J. 353 (1969); and 158, 92 N.J.L.J. 641 (1969). In Opinion 42 supra, we said:

A lawyer should never accept a retainer where his position may be adverse to that of a former client without taking extreme care to make certain that the new matter is one that will not be affected in any way by confidential information that he may have obtained in his former retainer.

Opinion 97, supra, considered an inquiry concerning the propriety of an attorney's representing the wife in a divorce proceeding against a man whom he had previously represented in a murder case. The attorney alleged that the interests of the former client were not adverse or hostile to the interests of the wife. We, nevertheless, came to the conclusion that the inquirer should not undertake a divorce action for the wife of the attorney's previous client. In that opinion we said:

The test is not whether the attorney has appeared for the party against whom he now appears, but whether his accepting the new retainer will require him in advancing the interests of his new client, to do anything which will injuriously affect his former client in any matter in which he formally represented him.

We have mentioned in many of our opinions that to maintain public confidence in the bar, it is necessary not only to avoid actual wrongdoing, but even the appearance of wrongdoing.

In Opinion 154, supra, we decided it was not unethical for an attorney to undertake a negligence action against a former client whom he had represented in an unrelated matter, stating:

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 communications. 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.

In Opinion 158, supra, we concluded that the suit by an attorney against a former client was not improper because it was entirely unrelated to the prior representation of the client but problem in the following language:

If there is the slightest doubt as to whether or not the acceptance of professional employment will involve a conflict of interest between two clients or with a former client, or a conflict between the interests of any client and that of the attorney, or may require the use of information obtained through the service of another client, the employment should be refused. Wise, Legal Ethics 273 (2d ed. 1970).

See also A.B.A. Comm. on Professional Ethics and Grievances, Opinion 165 (1936).

In our opinion it would be unwise for attorney Z to undertake the representation of A unless he is convinced, beyond doubt, that the subject matter of the prior representation of B and the present pending charge against him are unrelated; that the prior representation of B will not adversely affect B's interests in the pending matter; that in representing A he will not be called upon to use any confidential information or secrets obtained in his former representation of B and that his former representation of B will not prevent him from representing A with undivided fidelity. All that we have said applies to any attorney associated with attorney Z.