NYSBA March 1, 1978

Can a lawyer warn a former client that the client's new lawyer may have a conflict of interest?

Short answer: The opinion concluded that a lawyer who only suspects another lawyer's conflict may report the suspicion to a disciplinary authority but should not communicate it to that lawyer's present client; actual unprivileged knowledge of a violation may be shared more broadly, subject to defamation law.

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This page answers the general question as of 1978. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

A lawyer obtained unprivileged information leading him to suspect that a former client's present counsel had interests conflicting with the client's. The committee was asked whether the lawyer could divulge that information to his former client. It answered no.

The committee weighed two principles: respect for the sanctity of the attorney-client relationship and the duty not to cast unwarranted aspersions on other lawyers (EC 7-18, DR 7-104(A)(1); EC 9-1, 9-5) against the Canon 1 duty to help maintain the profession's integrity, which through EC 1-4 and DR 1-103 requires reporting certain misconduct, including violations of any Disciplinary Rule such as the conflict provisions DR 5-101(A) and DR 5-105(A). It stressed that DR 1-103(A) speaks of "knowledge of a violation," not suspicion, and concluded that a lawyer must report only where he can reasonably be said to know a violation occurred; mere suspicion creates no obligation to report.

Although suspicion need not be reported, the committee said there is no impropriety in divulging it, with relevant information, to an authority empowered to investigate or act, because little is lost and future misconduct may be prevented (N.Y. State 456 (1977)). But there is substantial danger in letting a lawyer approach the suspected counsel's present clients, where the sanctity of the attorney-client relationship weighs heavily against the communication; the fact that a former client is involved does not diminish the danger, and the former client's confidence in present counsel should not be jeopardized unnecessarily. The committee added that a lawyer with actual unprivileged knowledge of a violation may disclose it even to former clients, provided it is not used to acquire clients at another's expense and is weighed against the need to avoid irreparable injury; defamation law applies and the lawyer acts at his peril if the information proves wrong. The question was answered in the negative.

Currency note

This opinion was issued in 1978, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (reporting professional misconduct is now governed by Rule 8.3, professional misconduct generally by Rule 8.4, and conflicts by Rule 1.7). 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: Must a lawyer report another lawyer's suspected conflict?

A: Under this opinion, no. The committee held that the duty to report attaches only to knowledge of a violation, not mere suspicion.

Q: Where should a suspicion go?

A: To an authority empowered to investigate or act. The committee found no impropriety in reporting a suspicion there, but said it should not be communicated to the suspected lawyer's present client.

Q: Can a lawyer ever tell a former client about another lawyer's violation?

A: Yes, where the lawyer has actual unprivileged knowledge of a violation, provided the disclosure is not used to take clients at another's expense and accounts for the need to avoid irreparable injury; defamation law still applies.

Background and rules framework

The opinion applies Canon 1 and DR 1-103(A) (reporting misconduct), DR 1-102(A)(1) (violating a Disciplinary Rule), the conflict rules DR 5-101(A) and DR 5-105(A), and EC 7-18 / DR 7-104(A)(1) on communications. The current Model Rule analogues are Rule 8.3 (reporting professional misconduct), Rule 8.4 (misconduct), and Rule 1.7 (conflicts).

Citations and references

Rules of Professional Conduct:

MR 8.3 (reporting professional misconduct)
MR 8.4 (misconduct)
MR 1.7 (conflict of interest: current clients)
NY Canon 1; EC 1-4, EC 7-18, EC 9-1; DR 1-102(A)(1), DR 1-103(A), DR 5-101(A), DR 5-105(A), DR 7-104(A)(1)

Other opinions cited:

N.Y. State 456 (1977): reporting suspicions to an appropriate authority
N.Y. State 310 (1973), N.Y. State 305 (1973): disclosing a lawyer's misconduct without soliciting clients

Source

Landing page: https://nysba.org/opinion-480/

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