93 N.J.L.J. 837
December 3, 1970
Conflict of Interest
Representing Workmen's Compensation
Petitioner and Employer
An attorney inquires whether or not it is a conflict of
interest to represent a workmen's compensation petitioner when the
attorney's office has represented the employer in the past and/or
continues to represent the employer in other capacities. The
inquirer recognizes that "in an ordinary situation this would be a
clear case of conflict of interest" but he presents the question
due to "the unique nature of workmen's compensation proceedings
when the dealings are directly and exclusively with the insurance
company and not with the defendant, employer, and there is no
question of liability."
In our Opinion 165, 92 N.J.L.J. 831 (1969), we stated:
...The Canons of Professional Ethics make it pellucid that there are not two standards, one applying to counsel privately retained by a client, and the other to counsel paid by an insurance carrier.
Adherence to this duty forbids the attorney for the carrier from taking a position adverse to its insured. Since there are not dual standards for respondent's counsel, there are not dual standards for petitioner's counsel. It would therefore be improper for the inquirer to represent a petitioner in a workmen's compensation case against a respondent whom he continues to represent. Such dual representation violates Canon 6, Canons of Professional Ethics. Cf. N.J. Advisory Committee on Professional Ethics, Opinion 6, 86 N.J.L.J. 718 (1963).
On the other hand, if the attorney has ended his professional representation of the client, he may properly undertake an action against the former client if the matter does not involve confidential communications and there has been no connection between the prior representation and the new matter. N.J. Advisory Committee on Professional Ethics, Opinion 154, 92 N.J.L.J. 353 (1959), Drinker, Legal Ethics (1953) 112.
But if the former client has any reason to feel aggrieved, the necessity for maintaining proper public relations for the bar and of avoiding the appearance of wrongdoing will normally cause the attorney to refuse to accept employment in a capacity which is adverse to the interests of the former client. N.J. Advisory Committee on Professional Ethics, Opinion 6, 86 N.J.L.J. 718 (1963), Opinion 158, 92 N.J.L.J. 641 (1969) and Opinion 128, 91 N.J.L.J. 309 (1968) with opinions cited therein.