After an associate leaves a firm, can he represent a former client of that firm in fighting the firm's bill for legal work the associate himself did while employed there?
Apply this to your situation
This page answers the general question as of 1973. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The inquiry asked whether, when an associate leaves a firm, he may represent a former client of the firm in disputing the firm's claim for legal services that he rendered during his employment.
The Committee began from settled ground: a client always has the privilege of discharging his attorney and the right to be represented at all times by counsel of his own selection, and the superseding attorney has no obligation to require the client to pay the first attorney. But in undertaking to supersede another attorney, the superseding attorney is bound to use care not to encroach upon the practice of the previous attorney. The Committee concluded that here, where the representation of the client against the now-superseded former firm involves the issue of the fee, it would seem impossible to stay within that obligation.
Currency note
This opinion was issued in 1973, 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 duties to former clients and former firms it applied are 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.
Common questions
Q: Can a client switch to a new lawyer and refuse to pay the old firm?
A: The opinion recognized the client may always choose new counsel, and the new lawyer has no obligation to require the client to pay the first attorney.
Q: Why couldn't the departed associate take this particular case?
A: Because the dispute was over the firm's fee for services the associate himself had rendered, the Committee found it would be impossible to avoid encroaching on the prior firm's practice.
Background and rules framework
The opinion applied the duty not to encroach upon a prior attorney's practice when superseding that attorney, drawing on Drinker and Wise and earlier ABA opinions. In current New Jersey terms the duties to a former firm and its clients fall under RPC 1.9.
Citations and references
Rules of Professional Conduct:
- Duties on superseding prior counsel, as in effect 1973; now MR 1.9 / NJ RPC 1.9
Other opinions cited:
- NJ ACPE Opinion 203, 94 N.J.L.J. 298 (1971): client's right to counsel of choice
- ABA Committee on Professional Ethics and Grievances Opinions 130 (1936), 149 (1936)
See also
- NJ ACPE Op. 304: Multiple-Party Conflict and Fees Upon Withdrawal
- NJ ACPE Op. 343: A Lawyer Defending Himself in a Rent Action by a Former Client
- NJ ACPE Op. 342: A Former Associate Side-Switching to a Physician
Source
- Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp251-1.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.
96 N.J.L.J. 234, February 22, 1973
OPINION 251
Conflict of Interest Former Associate Defending in Suit for Fees for His Former Services
This inquiry poses the question:
Where an associate leaves a firm, may he represent a former client of the firm in disputing the firm's claim for legal services rendered by him during his employment?
A client always has the privilege of discharging his attorney. He has the right to be represented at all times by counsel of his own selection. See our Opinion 203, 94 N.J.L.J. 298 (1971); A.B.A. Comm. on Professional Ethics and Grievances, Opinions 130 (1936), and 149 (1936) Drinker, Legal Ethics 191, 198 (1967); Wise, Legal Ethics 292 (1970).
The superseding attorney has no obligation to require the client to pay the first attorney, Drinker, supra, 198; Wise, supra, 232, 292; A.B.A. Comm. on Professional Ethics and Grievances, Opinion 130 (1936). However, in undertaking to supersede another attorney, the superseding attorney is bound to use care not to encroach upon the practice of the previous attorney. Drinker, Legal Ethics 190 (1967); Wise, Legal Ethics 288 (1970). Here, where the representation of the client against the former firm now superseded involves the issue of the fee, it would seem impossible to stay within this obligation.
Get today's answer for your situation
You just read a 1973 opinion on this question. Ezel checks the current rules of professional conduct in your state and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.