Can a law firm sue a person in an unrelated matter when a partner of the firm had earlier consulted with that person about a different, declined case?

Plain-English summary

The inquirer, himself an attorney, had once consulted a partner of a law firm about the firm's possible representation of the inquirer's spouse (and the inquirer per quod) in a medical malpractice action. The partner agreed to consider the matter on a contingent fee after reviewing documents and consulting medical experts, but later declined the case on its merits and returned the papers. About sixteen months later, the inquirer was named as a defendant in a libel and slander action in which the plaintiff was represented by another partner of that same firm. The inquirer demanded that the firm withdraw, asserting a conflict of interest and arguing that the firm had access to confidential information about his wife's medical history under DR 4-101(A), (B), and (D).

The Committee held there was no conflict. It relied on its Opinions 154 and 158, which establish that a lawyer may bring suit against a former client where the prior representation has ended and the matter does not involve confidential communications. As stated in Opinion 154, the mere fact that an attorney earlier represented the adverse party does not by itself foreclose the attorney from taking the new matter, particularly where the two matters are wholly unrelated.

Applying that principle, the Committee found that the medical history discussed or contained in the malpractice documents could not have had any bearing or relationship to the facts of the libel and slander action. It therefore saw no conflict of interest on the part of the law firm based on the facts presented.

Currency note

This opinion was issued in 1977, 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 of this kind are now analyzed under RPC 1.9, and confidentiality under RPC 1.6. Treat this page as historical context, not current guidance.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 or firm sue a former client?

A: Under this opinion, yes, where the prior representation has ended and the matter does not involve confidential communications relevant to the new case.

Q: Did a brief, declined consultation count against the firm here?

A: No. The partner had only considered and then declined the earlier malpractice matter; the Committee found nothing in that consultation that bore on the unrelated libel and slander action.

Q: What made the two matters "unrelated" for the Committee?

A: The medical-history information from the malpractice inquiry could have no bearing on the facts of the libel and slander action, so there was no risk of using the former client's confidences against him.

Background and rules framework

The opinion applied the confidentiality and conflict principles of DR 4-101 and DR 5-105, as interpreted in its Opinions 154 and 158, to allow suit against a former consult-only client in an unrelated matter. In current New Jersey terms, duties to former clients are governed by RPC 1.9 and confidentiality by RPC 1.6.

Citations and references

Rules of Professional Conduct:

• DR 4-101 (preservation of client confidences and secrets), as in effect 1977; now MR 1.6 / NJ RPC 1.6
• DR 5-105 (refusing or continuing employment with conflicting interests); now analyzed under MR 1.9 / NJ RPC 1.9

Other opinions cited:

• NJ ACPE Opinion 154, 92 N.J.L.J. 353 (1969); Opinion 158, 92 N.J.L.J. 641 (1969)

See also

• NJ ACPE Op. 391: Foreclosure Action Against a Former Client
• 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/acp367-1.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.

100 N.J.L.J. 415, May 12, 1977

OPINION 367

Conflict of Interest
Suing Former Client in Unrelated Matter

Inquiry is made as to whether there is an impropriety on the part of a member of a law firm which represents a plaintiff in an action against the inquirer, who is an attorney-at-law of this State, for libel and slander, by reason of prior representation by a member of that firm of the inquirer in another unrelated matter.

The facts presented to this Committee are that the inquirer had consulted with one of the partners of a law firm with reference to a possible or probable representation by that firm of the inquirer's spouse, and presumably the inquirer per quod, in an alleged malpractice action against a physician. The attorney in question advised the inquirer that he would consider the representation on a contingent fee basis, after having an opportunity to examine a number of documents which had been presented to him as well as consultation with medical experts. Sometime thereafter the inquirer was advised that the attorney would not be interested in undertaking the matter for reasons connected with the merits of the case and he thereafter returned whatever papers had been left with him to the inquirer. Some 16 months later, the inquirer was named as a defendant in a libel and slander action in which the plaintiff is represented by another partner of the firm with which the inquirer had had his initial discussion regarding the malpractice action. The inquirer thereafter made demand upon the attorney representing the plaintiff in the libel and slander action to withdraw, alleging that there was a "conflict of interest." The request was refused.

The inquirer indicates that the law firm, or particularly the partner of the member representing the plaintiff in the libel and slander action, had had access to documents of a personal and private nature which contained confidential information relating to his wife's medical history, and that therefore the partnership has an ethical responsibility to preserve the confidences and secrets gained in its professional relationship pursuant to DR 4-101(A), (B) and (D).

This Committee has, on numerous occasions, dealt with the questions arising in situations of possible conflicts of interest and the propriety of an attorney suing a former client in both related and unrelated matters. It is clear that our Opinions 154, 92 N.J.L.J. 353 (1969), and 158, 92 N.J.L.J. 641 (1969), among others, are in point and controlling. In Opinion 154, supra, the inquiry related to a factual situation in which the inquiring attorney asked this Committee whether he might "properly undertake a negligence action against an individual whom the attorney had formerly represented in an unrelated matter, specifically, the defense of an assault and battery charge made against him in municipal court." This Committee held that if the initial litigation, viz the municipal court matter, had been completed and if the parties and circumstances involved in the municipal court matter were entirely different from those which gave rise to the negligence matter, the attorney might undertake the negligence action and in so doing he would not violate Canon 6 or 37. (Canon 6 is now included in DR 4-101 and DR 5-105. Canon 37 is now included in DR 4-101(b).) We have consistently held that "a lawyer may bring suit against a former client if representation of a former client has been ended and the matter does not involve confidential communications." See Opinion 154, supra.

The medical history which may have been discussed by the inquirer or by the inquirer's wife, or as contained in the medical documents, could not have been of such a nature as to have any bearing or relationship to the facts and matters involved in the libel and slander action. "The mere fact that the attorney had at an earlier time represented the adverse party does not in itself foreclose the attorney from undertaking the new matter." Opinion 154, supra. This is particularly true where the two matters are wholly unrelated. See Opinion 158, supra. We, therefore, see no conflict of interest on the part of the law firm based upon the facts presented in this inquiry.