Can a lawyer who worked on a malpractice suit against a physician at his old firm later represent that physician in an unrelated divorce after moving to a new firm?

Plain-English summary

The inquiring attorney had been associated with a firm representing a plaintiff in a medical malpractice action against a physician, where he supervised preparation of the files for trial and took part in decisions about discovery, motions, and related matters. He then left that firm and, at a new firm, undertook to represent the same physician in a divorce action unrelated to the malpractice suit. Both cases were pending and in the discovery stage, and the physician's interests were hostile to those of the malpractice plaintiff.

The Committee reasoned that the attorney should not represent the physician because he might reveal to the physician confidences gained during the malpractice suit. Invoking the principle that no one can serve two masters, it observed that where there is the slightest doubt whether accepting employment will involve a conflict between two clients or with a former client, or may require using information obtained in another's service, the employment should be refused.

The Committee noted it had stated on several occasions that the appearance of conflict, even without an actual conflict, may require disengagement, citing its Opinions 42 and 128. For those reasons it held it would be improper for the former associate and his present firm to continue to represent the physician in the matrimonial action.

Currency note

This opinion was issued in 1976, 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. Duties to former clients are now analyzed under RPC 1.9 and concurrent-client conflicts under RPC 1.7; New Jersey abolished the separate appearance-of-impropriety standard in 2004. Treat this page as historical context, not current guidance.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 lawyer who helped sue someone later represent that person in an unrelated case?

A: Under this opinion, not on these facts. The Committee held the lawyer could not represent the physician he had helped sue, even in an unrelated divorce, while the malpractice suit was pending.

Q: Why did it matter that the matters were unrelated?

A: The Committee focused on the risk of revealing confidences from the malpractice suit and the hostility between the physician and the malpractice plaintiff, not on subject-matter overlap.

Q: Did the appearance of conflict alone matter?

A: Yes. The Committee noted that the appearance of conflict, even without an actual conflict, may require disengagement.

Background and rules framework

The opinion applied the former-client and conflict principles of DR 5-105, with the appearance-of-conflict rule of its Opinions 42 and 128, to a lawyer who changed firms and sought to represent the adversary of his prior firm's client. In current New Jersey terms, the questions are governed by RPC 1.9 and RPC 1.7.

Citations and references

Rules of Professional Conduct:

• DR 5-105 (declining or continuing employment with conflicting interests), as in effect 1976; now MR 1.9 / NJ RPC 1.9 and MR 1.7 / NJ RPC 1.7

Other opinions cited:

• NJ ACPE Opinion 42, 87 N.J.L.J. 285 (1964); Opinion 128, 91 N.J.L.J. 309 (1968)

See also

• NJ ACPE Op. 361: A Firm Defending People Its Associate Once Helped Investigate
• NJ ACPE Op. 367: Suing a Former Client in an Unrelated Matter
• NJ ACPE Op. 450: Representing an Agent Against a Former Client Management Corporation

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp342-1.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.

99 N.J.L.J. 610, July 8, 1976

OPINION 342

Conflict of Interest
Former Associate of Firm Suing Physician Now Representing Physician in Different Action

An attorney inquires as to the propriety of his action in the following case. He was associated with a firm representing a plaintiff in a medical malpractice action against a physician in which he performed services on behalf of the plaintiff. He now practices with another firm and seeks to represent that physician in a matrimonial action.

In the malpractice action the attorney supervised the preparation of the files for trial and took part in decisions concerning discovery, motions, and other related matters. He then terminated his association with the firm which is suing the physician in the malpractice action and has undertaken to represent the physician in a divorce action, which is unrelated to the malpractice suit. Both cases are presently pending and are under discovery stage.

It is urged that the attorney should disassociate himself from representing the physician in the matrimonial action because he may reveal to the physician certain confidences, gained during the malpractice suit. The interests of the physician are hostile to those of the plaintiff in the malpractice suit.

'No man can serve two masters.' 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.

Our Committee has stated on a number of occasions that the appearance of conflict, even when no actual conflict exists, may require disengagement by an attorney. See our Opinion 42, 87 N.J.L.J. 285 (1964), and 128, 91 N.J.L.J. 309 (1968).

For the reasons set forth, it would he improper for the former associate and his present firm to continue to represent the physician in the matrimonial action.