Can a lawyer sue a former client in an unrelated case, and can a lawyer who currently represents a married couple later handle a divorce for one spouse?

Plain-English summary

The Committee addressed two inquiries from one attorney. In the first, he wished to represent a passenger injured in an accident against a former client who was technically a defendant because he owned the car involved, though he was not the driver; the attorney had previously represented that person in a matrimonial and another action but no longer did, and the former client had actually referred the plaintiff to him. The Committee saw no impropriety in accepting the case, citing Opinion 154, which permits suit against a former client where the prior representation in an unrelated matter has ended.

In the second inquiry, the attorney represented a married couple in a case where the husband was injured in an accident and the wife had only a loss-of-consortium claim. The husband wanted the attorney to handle his divorce once that action was completed, and the attorney assumed the wife had no objection. The Committee held that the attorney's relationship to the parties was too recent for him to turn around and represent either spouse in a divorce, even with both parties' consent, because there would always be the question whether he had received confidential information from the other spouse bearing on a property settlement or the prosecution of the divorce.

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. Treat this page as historical context, not current guidance.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 sue a former client in a new, unrelated case?

A: Under this opinion, yes, where the prior representation in an unrelated matter has ended, as the Committee found for the accident suit against the former client car owner.

Q: Did it matter that the former client referred the new plaintiff?

A: The Committee noted the referral and saw no impropriety, treating the prior unrelated representation as concluded.

Q: Could the lawyer handle the husband's divorce after representing the couple?

A: No. The Committee held the relationship was too recent, and consent did not cure the risk that confidences from the wife could bear on a property settlement or the divorce.

Background and rules framework

The opinion applied the former-client rule of Opinion 154 to the accident suit and a confidentiality-based concurrent-conflict concern to the matrimonial switch. In current New Jersey terms, the questions are governed by RPC 1.9 (former clients) and RPC 1.7 (concurrent conflicts).

Citations and references

Rules of Professional Conduct:

• Former-client and conflict principles 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 154, 92 N.J.L.J. 353 (1969)

See also

• NJ ACPE Op. 367: Suing a Former Client in an Unrelated Matter
• NJ ACPE Op. 350: Former Attorney for Reciprocal Wills Representing the Husband Against the Wife
• NJ ACPE Op. 356: A Spouse's Prior Consultation Bars the Firm

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp352-1.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. 841, September 23, 1976

OPINION 352

Conflict of Interest
Suing Former Client in Unrelated Matter

An attorney has submitted two inquiries concerning the propriety of his bringing action against a former client.

In the first case he would represent a passenger who was involved in an accident where a former client is technically a defendant because he owned the car involved, although he was not the driver. The attorney had previously represented the defendant in a matrimonial and in another action, but he no longer represents him and the defendant actually referred the plaintiff to the attorney.

The Committee sees no impropriety in the attorney accepting this case against his former client. See our Opinion 154, 92 N.J.L.J. 353 (1969), which would permit such action where the attorney's representation of the former client in an unrelated matter has ended.

The attorney's second inquiry involves a married couple he represents in a case where the husband was angered in an accident and the wife has only a claim for loss of consortium. The husband has stated that after this action is completed, he desires to have the inquirer represent him in a divorce action, and the inquirer assumes that the wife has no objection. Nevertheless, the representative relationship of the attorney to the parties is too recent for the attorney to turn around and represent either in a divorce action even though both parties consent. There would always be the problem of whether the attorney had received confidential information from the other spouse that might bear on provisions in a property settlement or trial prosecution in the divorce action.