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91 N.J.L.J. 309
May 16, 1968
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the New Jersey Supreme Court
OPINION 128
Conflict of Interests
Opposing Former Partner's Client
An attorney inquires whether, based upon the following facts,
there is a violation of the Canons of Professional Ethics, Canons
6 and 37.
In 1964, a wife consulted attorney A in regard to matrimonial
difficulties, at which time A and the inquirer were partners. No
action was taken - apparently the husband and wife were reconciled.
The partnership was terminated in 1961, and A died in 1967.
Recently, the inquirer has been consulted by the husband relative
to a suit for divorce based on adultery, which allegedly occurred
within a few months prior to the consultation. The inquirer further
states that he never interviewed the wife, and that no confidences
were disclosed to him by his former partner.
It is clear, under the facts presented, that A, if he were
alive, could not represent the husband in an action for divorce
against the wife. See In re Blatt, 42 N.J. 522 (1964), our Opinion
26, 87 N.J.L.J. 19 (1964), and In re Braun, 49 N.J. 16 (1967). This
inquiry, however, concerning as it does the representation of the
husband by A's partner, is not directly disposed of by the Blatt
or Braun cases or by our Opinion 26, supra.
An opinion which bears upon the present inquiry, A.B.A. Comm.
on Professional Ethics and Grievances, Opinion 33 (1931), concluded
that an attorney could not represent individuals who were taking a
position against a former client of the attorney's former partner,
contrary to that advanced by his former partner when the two were
associated. Although the facts of A.B.A. Opinion 33 indicate that
the attorney may have received confidences concerning the matter
when he was associated with the former partner, we do not believe
the ABA Committee would have reached a different conclusion under
the facts presented here. Nor do we.
For all intents and purposes, the client of one partner is a
client of all the partners. If an attorney formerly associated with
X could not handle a particular matter because of the prohibition
contained in Canon 6 which "forbids also the subsequent acceptance
of ... employment from others in matters adversely affecting any
interest of the client with respect to which confidence has been
reposed," or the prohibition in Canon 37 which forbids the
disclosure of confidential communications, X cannot handle the
matter either. The inquirer here, however, states that no
confidence had been reposed in him. But this Committee has made
clear in the past that the appearance of conflict, even where no
actual conflict interests, may require disengagement by an attorney
from the matter which gives rise to such an appearance. See our
Opinion 68, 88 N.J.L.J. 91 (1965) and 42, 87 N.J.L.J. 285 (1964).
In the present inquiry, it is certainly possible that the wife
could, with justification, feel aggrieved due to the inquirer's
representation of her husband.
The impropriety of taking a case against
a former client is not based solely on
necessity for disclosure of confidential
communications. If the former client has any
reason to feel aggrieved, the necessity of
maintaining proper public relations for the
bar and of avoiding the appearance of
wrongdoing should cause the attorney to refuse
to accept employment in a capacity adverse to
the interests of a former client. See, Wise,
Legal Ethics 155 (1966).
In this case, the wife is, by virtue of the fact that she was
represented by a former partner, a former client of the inquirer as
well.
We can perceive of no way in which this unprofessional
appearance could be limited and, therefore, conclude that the
inquirer may not represent the husband in an action for divorce
against the wife.
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