When a lawyer moves from the plaintiff's firm to the defendant's firm in the same lawsuit, must the new firm withdraw even if the lawyer is screened off from the case?

Plain-English summary

An associate had performed extensive services for the firm representing the plaintiff in a personal-injury action and then moved, a few months later, to the firm defending that same action. He asked whether his new firm could keep representing the defendant if he completely avoided any further involvement in the case, and whether he had to quit if the firm refused to withdraw.

The Committee held the new firm had to withdraw. It treated Opinion 43 as exactly on point, and rejected the argument that Opinion 43 was undermined because it had relied on Canon 6, which DR 5-105 superseded. DR 5-105 was intended to carry the proscription forward. Under DR 5-105(D), if a lawyer must decline or withdraw from employment under DR 5-105, no partner or associate of his firm may accept or continue it. Because the inquirer himself would have to refuse the defendant's matter, every partner and associate in his new firm had to decline or withdraw as well.

The Committee added that even if confidential material could be fully protected by screening, the appearance of conflict would persist, so withdrawal was required. It drew on Opinion 128, where a partner could not represent a husband against a wife who had once consulted his former partner, even though no confidences had reached him: for conflict purposes the client of one partner is treated as the client of all, and the appearance of conflict can require disengagement even where no actual conflict exists.

Currency note

This opinion was issued in 1975, 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 migrating-lawyer and imputation analysis then handled under DR 5-105(D) is now treated under RPC 1.9 (duties to former clients) and RPC 1.10 (imputation of conflicts), which today allow screening in defined circumstances that this opinion did not recognize. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.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 firm keep a case after hiring a lawyer from the opposing firm in that same case?

A: Under this opinion, no. The Committee held the firm must immediately withdraw, because the migrating lawyer's disqualification is imputed to the whole firm under DR 5-105(D).

Q: Does walling the lawyer off from the case solve the problem?

A: Not under this opinion. The Committee concluded that even if confidential material could be fully protected, the appearance of conflict would persist and require withdrawal.

Q: Did the lawyer have to quit his new job if the firm would not withdraw?

A: The Committee framed the duty as the firm's to withdraw. It held the firm must immediately withdraw from the case, which resolved the situation the inquirer described.

Background and rules framework

The opinion applied DR 5-105 and especially DR 5-105(D) (imputation of a lawyer's conflict to the lawyer's firm), reading them to carry forward the proscription previously found in Canons 6 and 37. In current New Jersey terms, a migrating lawyer's conflicts are governed by RPC 1.9 (former clients) and RPC 1.10 (imputed disqualification and the limited screening it now permits).

Citations and references

Rules of Professional Conduct:

• DR 5-105 and DR 5-105(D) (declining/withdrawing from conflicting employment; imputation), as in effect 1975; now MR 1.9 / NJ RPC 1.9 and MR 1.10 / NJ RPC 1.10
• ABA Canon 6 and Canon 37 (predecessor confidence and conflict canons)

Other opinions cited:

• NJ ACPE Opinion 43, 87 N.J.L.J. 285 (1964)
• NJ ACPE Opinion 128, 91 N.J.L.J. 309 (1968)
• NJ ACPE Opinion 68, 88 N.J.L.J. 91 (1965)

See also

• NJ ACPE Op. 342: A Former Associate Side-Switching to the Physician
• NJ ACPE Op. 329: Leaving the State's Employ for a Firm Adverse to the State
• NJ ACPE Op. 334: Representing a Husband Against a Former-Client Wife
• NJ ACPE Op. 367: Suing a Former Client in an Unrelated Matter

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp313-1.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.

98 N.J.L.J. 753, September 4, 1975

OPINION 313

Conflict of Interest Former Employer Representing Plaintiff Present Employer Representing Defendant

The inquirer is an associate in a law firm which is defending a certain action for personal injury. Until a few months ago, he was employed by the firm which represents the plaintiff in the action, and had performed extensive services in connection with the matter. He asks whether his present employer may continue to represent the defendant, provided that he completely avoids further involvement in the case on either side. He also inquires as to whether he has a duty to quit his present job if the firm refuses to withdraw from the case.

Opinion 43, 87 N.J.L.J. 285 (1964), referred to by the inquirer, is exactly on point, and prohibits the conduct in question. The inquirer feels, however, that since the opinion was based on ABA Canons of Professional Ethics, Canon 6, and since Canon 6 has been superseded by DR 5-105, Opinion 43 may no longer be valid. There is no justification for changing the result reached by the Committee in Opinion 43, and we hold that DR 5-105 was intended to carry over this proscription. In fact, DR 5-105(D) provides that, "[i]f a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his firm may accept or continue such employment." Under this provision, since the inquirer would be required to refuse or withdraw from employment if it were offered to him personally by the defendant in this matter, certainly any partner or associate in the firm that employs him must also decline or withdraw.

The inquirer feels that adequate provision can be made to protect the plaintiff from disclosure of confidential material but even if this is entirely possible the appearance of conflict would persist. The Committee believes it is clear that the firm employing the inquirer must immediately withdraw from the case.

In Opinion 128, 91 N.J.L.J. 309 (1968), Attorney B inquired whether he could represent a husband in a suit for divorce, where in 1954 his client's wife had consulted Attorney A, at which time A and B were partners. No action then was taken; the partnership terminated in 1961 and A died in 1967. B states he never interviewed the wife nor were any confidences disclosed to B by his former partner. In declaring that B could not represent the husband, we said:

For all intents and purposes, the client of one partner is a client of all the partners. If an attorney formerly associated with X could not handle a particular matter because of the prohibition contained in Canon 6 which "forbids also the subsequent acceptance of ... employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed," or the prohibition in Canon 37, which forbids the disclosure of confidential communications, X cannot handle the matter either. The inquirer here, however, states that no confidence had been reposed in him. But this Committee has made clear in the past that the appearance of conflict, even where no actual conflict exists, may require disengagement by an attorney from the matter which gives rise to such an appearance. See our Opinions 68, 88 N.J.L.J. 91 (1965) and 42, 87 N.J.L.J. 285 (1964).