Can a firm keep suing a driver one partner used to represent on the same accident, even after that case settled and everyone consents?

Plain-English summary

A firm represented passengers in a personal-injury action against an insured driver. One of its partners had, before the partnership formed, represented that same driver in a claim arising from the same accident, a claim that had since settled. The committee concluded the firm could not continue against the driver. A lawyer must preserve a client's confidences and secrets even after the representation ends (DR 4-101; EC 4-5; EC 4-6), and should avoid later retainers that might adversely affect a former client in matters on which the lawyer counseled him.

The committee rejected the argument that the absence of confidences cured the conflict. Although the driver had suffered amnesia, confidential information adverse to him might have come from other sources during the prior representation, and, citing ABA Inf. 885 (1965), disclosure of confidences is not the sole test; the possibility that other matters might develop can require declining the employment. Public confidence may be undermined where it appears a lawyer could have gained useful information from a prior client, even if he did not (Canon 9; EC 9-2).

While DR 4-101(C)(1) allows representation against a former client in a related matter on consent after full disclosure, the committee found consent insufficient here. The plaintiffs and former client had consented, but the driver's insurance carrier, contractually obligated to indemnify him, objected, and the situation raised a possibility of collusion and an impression of impropriety. The committee noted that differing loyalties could collide, for example if a judgment exceeding the policy required the firm to proceed against the former client (EC 5-14). Because one lawyer was disqualified by the conflict, his partners and associates were equally precluded under DR 5-105(D), and it was inconsequential that the partnership formed after the conflicting retainers. The committee limited the opinion to the facts presented.

Currency note

This opinion was issued in 1975, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (duties to former clients are now governed by Rule 1.9, imputation by Rule 1.10, and confidentiality by Rule 1.6). 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: Does a former client's consent always let a firm proceed against him?

A: Under this opinion, no. The committee found consent insufficient where the insurer objected and the arrangement raised a possibility of collusion and an impression of impropriety, even though the plaintiffs and former client consented.

Q: The former client had amnesia and shared no confidences. Why was the firm still barred?

A: Per the opinion, disclosure of confidences is not the sole test; confidential information could have come from other sources, and the appearance that the lawyer could have gained useful information was enough (Canon 9; EC 9-2; ABA Inf. 885 (1965)).

Q: Does the bar reach the partner's whole firm?

A: Yes. The committee held that because one lawyer was disqualified, his partners and associates were equally precluded under DR 5-105(D), regardless that the partnership formed after the conflicting retainers.

Background and rules framework

The opinion applies Canons 5 and 9 of the then-current New York Code, EC 4-5, 4-6, 5-14, and 9-2, DR 4-101, and the imputation rule DR 5-105(D). The current analogues are Rule 1.9 (duties to former clients), Rule 1.10 (imputation of conflicts), and Rule 1.6 (confidentiality).

Citations and references

Rules of Professional Conduct:

• MR 1.9 (duties to former clients)
• MR 1.10 (imputation of conflicts)
• MR 1.6 (confidentiality of information)
• NY Canon 5; Canon 9; EC 4-5, EC 4-6, EC 5-14, EC 9-2; DR 4-101; DR 5-105(D)

Cases:

• Matter of Kelly, 23 N.Y.2d 368 (1968), limits on consent to conflicts
• Rotante v. Lawrence, 46 A.D.2d 199 (1st Dep't 1974), conflict of interest in injury litigation
• Edelman v. Levy, 42 A.D.2d 758 (2d Dep't 1973), conflict of interest

Other opinions cited:

• ABA Inf. 885 (1965): disclosure of confidences is not the sole test for a former-client conflict
• N.Y. State 74 (1968): consent may not cure serious conflicts of loyalty
• N.Y. State 161 (1970): consent did not cure the appearance of impropriety

See also

• NY State Bar Op. 415: Firm disqualification and the legislator statutory exception
• NY State Bar Op. 436: A firm's conflict from an associate's prior representation
• NY State Bar Op. 422: Hiring a secretary from an adversary firm

Source

• Landing page: https://nysba.org/opinion-410/