Can a lawyer who is sued by a former client over his own apartment rent represent himself and his wife pro se, or must he hire independent counsel?

Plain-English summary

An attorney and his wife leased an apartment in a complex that his law firm and he had represented in roughly twenty eviction cases. When the landlord noticed a rent increase on the attorney's own apartment, he concluded the method and amount were contrary to law and refused to pay. The landlord retained other attorneys and sued the attorney and his wife for the increase plus late charges; a member of his firm filed an answer, the landlord's attorney challenged the propriety of that representation given the firm's prior work for the complex, and the firm then withdrew, substituting the attorney pro se for himself and his wife. The landlord's attorney argued that DR 5-101 and DR 6-102 barred the attorney from representing himself and his wife, while the attorney relied on DR 6-101(B)(4) and the hardship of retaining other counsel where the amount in controversy was only $55.

The Committee framed the question as whether an attorney sued, together with his wife, by a former client may represent himself and his wife or must retain independent counsel. It held that, the modest amount in controversy notwithstanding, it conceived no ethical consideration that would prevent the attorney from representing himself and his wife under the circumstances, because he has the same fundamental rights in that respect as any other individual.

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. Treat this page as historical context, not current guidance.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 represent himself against a former client?

A: Under this opinion, yes. The Committee found no ethical bar to the attorney representing himself and his wife pro se in the rent action.

Q: Did the former-client relationship with the landlord change the answer?

A: No. The Committee held the attorney's right to self-representation is the same as any other individual's, despite his firm's prior eviction work for the complex.

Q: Did the small amount at stake matter?

A: The Committee noted the $55 in controversy but rested its holding on the fundamental right to self-representation, not the amount.

Background and rules framework

The opinion addressed whether DR 5-101, DR 6-102, and DR 6-101(B)(4) barred a lawyer-defendant from appearing pro se against a former client, and held they did not, resting on the right to self-representation. In current New Jersey terms, duties to former clients are governed by RPC 1.9.

Citations and references

Rules of Professional Conduct:

• DR 5-101, DR 6-102, and DR 6-101(B)(4), as in effect 1976; former-client duties now under MR 1.9 / NJ RPC 1.9

See also

• NJ ACPE Op. 367: Suing a Former Client in an Unrelated Matter
• NJ ACPE Op. 358: Suing an Estate the Lawyer Administered

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp343-1.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. 665, July 29, 1976

OPINION 343

Conflict of Interest
Attorney Defending Himself in Rent Action by Former Client

An attorney and his wife leased an apartment in a complex which his law firm and he represented in approximately twenty eviction cases. When the landlord recently gave notice of a rent increase on the attorney's apartment, the attorney determined that the method of establishing the increase as well as its amount was contrary to law and refused to pay the increase. The owner of the apartment complex retained other attorneys who instituted suit against the attorney and his wife for the increase plus late charges. An answer was filed in behalf of the defendants by one of the members of his law firm. The plaintiff's attorney challenged the propriety of the representation since the defendant and his law firm had previously represented the complex. The defendant attorney's law firm withdrew as counsel, substituting the defendant as attorney pro se for himself and his wife. Plaintiff's attorney is now contending that DR 5-101 and DR 6-102 forbid the defendant attorney firm representing his wife and himself pro se. The defendant is of the opinion that DR 6-101(B)(4) permits him to represent himself and his wife because of the hardship to which he would be put if he were required to refer the case to another counsel who had a background in landlord and tenant law as extensive as his own, and the expense of paying such an attorney would further increase the hardship "since the amount in controversy is only $55."

The specific question is whether an attorney who, together with his wife, is sued by a former client may represent himself and his wife in the action, or must he retain independent counsel. Though our spirits are deflated by the amount in controversy, we conceive no ethical consideration which would prevent the attorney from representing himself and his wife under the circumstances. He has the same fundamental rights in this respect as any other individual.