95 N.J.L.J. 253
March 23, 1972
Conflict of Interest
Representing Codefendant of Former Client
We are informed that A and B are codefendants in an indictment
charging them with possession of stolen property and that their
interests are adverse. Defendant B was previously represented by
attorney Z "on a like, but in no way related, charge." The question
for determination is whether attorney Z or his associate may, with
propriety, now represent A.
We have explored the factors to be considered in determining whether an attorney should accept a retainer adverse to a former client in N.J. Advisory Committee on Professional Ethics, Opinions, 42, 87 N.J.L.J. 285 (1964); 97, 89 N.J.L.J. 507 (1966); 154, 92 N.J.L.J. 353 (1969); and 158, 92 N.J.L.J. 641 (1969). In Opinion 42 supra, we said:
A lawyer should never accept a retainer where his position may be adverse to that of a former client without taking extreme care to make certain that the new matter is one that will not be affected in any way by confidential information that he may have obtained in his former retainer.
Opinion 97, supra, considered an inquiry concerning the
propriety of an attorney's representing the wife in a divorce
proceeding against a man whom he had previously represented in a
murder case. The attorney alleged that the interests of the former
client were not adverse or hostile to the interests of the wife.
We, nevertheless, came to the conclusion that the inquirer should
not undertake a divorce action for the wife of the attorney's
previous client. In that opinion we said:
The test is not whether the attorney has appeared for the party against whom he now appears, but whether his accepting the new retainer will require him in advancing the interests of his new client, to do anything which will injuriously affect his former client in any matter in which he formally represented him.
We have mentioned in many of our opinions that to maintain public confidence in the bar, it is necessary not only to avoid actual wrongdoing, but even the appearance of wrongdoing.
In Opinion 154, supra, we decided it was not unethical for an attorney to undertake a negligence action against a former client whom he had represented in an unrelated matter, stating:
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 communications. 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.
In Opinion 158, supra, we concluded that the suit by an attorney against a former client was not improper because it was entirely unrelated to the prior representation of the client but
problem in the following language:
If there is the slightest doubt as to whether
or not the acceptance of professional
employment will involve a conflict of interest
between two clients or with a former client,
or a conflict between the interests of any
client and that of the attorney, or may
require the use of information obtained
through the service of another client, the
employment should be refused. Wise, Legal
Ethics 273 (2d ed. 1970).
See also A.B.A. Comm. on Professional Ethics and Grievances,
Opinion 165 (1936).
In our opinion it would be unwise for attorney Z to undertake
the representation of A unless he is convinced, beyond doubt, that
the subject matter of the prior representation of B and the present
pending charge against him are unrelated; that the prior
representation of B will not adversely affect B's interests in the
pending matter; that in representing A he will not be called upon
to use any confidential information or secrets obtained in his
former representation of B and that his former representation of B
will not prevent him from representing A with undivided fidelity.
All that we have said applies to any attorney associated with