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96 N.J.L.J. 234 ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
February 22, 1973
Appointed by the New Jersey Supreme Court
Conflict of Interest
Former Associate Defending in
Suit for Fees for His Former Services
This inquiry poses the question:
Where an associate leaves a firm, may he
represent a former client of the firm in
disputing the firm's claim for legal services
rendered by him during his employment?
A client always has the privilege of discharging his attorney.
He has the right to be represented at all times by counsel of his
own selection. See our Opinion 203, 94 N.J.L.J. 298 (1971); A.B.A.
Comm. on Professional Ethics and Grievances, Opinions 130 (1936),
and 149 (1936) Drinker, Legal Ethics 191, 198 (1967); Wise, Legal
Ethics 292 (1970).
The superseding attorney has no obligation to require the
client to pay the first attorney, Drinker, supra, 198; Wise, supra,
232, 292; A.B.A. Comm. on Professional Ethics and Grievances,
Opinion 130 (1936). However, in undertaking to supersede another
attorney, the superseding attorney is bound to use care not to
encroach upon the practice of the previous attorney. Drinker, Legal
Ethics 190 (1967); Wise, Legal Ethics 288 (1970). Here, where the
representation of the client against the former firm now superseded
involves the issue of the fee, it would seem impossible to stay
within this obligation.
Where the unpaid fees due the client's original attorneys are
to be the subject of a controversy to determine reasonableness, the
attorney who handled the matter for the firm on an "exclusive"
basis would necessarily become a witness in the controversy. Hence,
for that attorney to become the superseding attorney of the client
would be improper. DR 5-101(B) and DR 5-102; Wise, supra, 311.
In this inquiry the firm was a professional association under
N.J.S. 14A:17. By the terms of The Professional Service Corporation
Act, N.J.S. 14A:17-8, the superseding associate in this inquiry
remains personally liable and accountable for the conduct of the
professional services rendered by him as an associate of the firm,
and the fact that the firm was so incorporated does not alter the
personal liability of that associate. Hence, for the associate to
become the client's new attorney for the controversy over the fees
due the original attorneys for the work of the associate will put
the superseding attorney in an intolerable position of conflict of
Therefore, we hold that the former associate may not undertake
to represent a client of his former employer in resisting payment
of fees due for work performed by that associate.
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