Rutgers School of Law, OAL case ACPE251

                                         96 N.J.L.J. 234
                                        February 22, 1973

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 251

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 Here, where the representation of the client against the former firm now superseded involves the issue of the fee, it would seem impossible to stay within this obligation.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 interest.
    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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