92 N.J.L.J. 353
May 29, 1969
Conflict of Interest
Suing Former Client
In Unrelated Matter
An attorney inquires whether he may 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 a
municipal court. The inquirer suggests that he believes the
municipal court matter was dismissed before the negligence case was
tendered to him.
Assuming that the municipal court matter has been dismissed and that the parties and circumstances involved in the municipal court matter are entirely different from those which gave rise to the negligence matter, the Committee is of the opinion that the attorney may undertake the negligence action and that in so doing he does not violate Canons of Professional Ethics, Canons 6 or 37.
In all our prior opinions upon this general subject matter there has been some connection between the prior representation and the new matter, either as to parties or subject matter. See, for example, Opinion 128, 91 N.J.L.J. 309 (1968). However, it has been held elsewhere that a lawyer may bring a suit against a former client if the representation of the former client has been ended and the matter does not involve confidential communication. Drinker, Legal Ethics 112 (1953). 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. The
test is whether the policy expressed in Canons 6 and 37 would be violated. Under the circumstances here presented, it does not appear that either canon would be violated.