Rutgers School of Law, OAL case acp313

98 N.J.L.J. 753
September 4, 1975

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 313

Conflict of Interest
Former Employer Representing Plaintiff
Present Employer Representing Defendant

    The inquirer is an associate in a law firm which is defending a certain action for personal injury. Until a few months ago, he was employed by the firm which represents the plaintiff in the action, and had performed extensive services in connection with the matter. He asks whether his present employer may continue to represent the defendant, provided that he completely avoids further involvement in the case on either side. He also inquires as to whether he has a duty to quit his present job if the firm refuses to withdraw from the case.
    Opinion 43, 87 N.J.L.J. 285 (1964), referred to by the inquirer, is exactly on point, and prohibits the conduct in question. The inquirer feels, however, that since the opinion was based on ABA Canons of Professional Ethics, Canon 6, and since Canon 6 has been superseded by DR 5-105, Opinion 43 may no longer be valid. There is no justification for changing the result reached by the Committee in Opinion 43, and we hold that DR 5-105 was intended to carry over this proscription. In fact, DR 5-105(D) provides that, "[i]f a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his firm may accept or continue such employment." Under this provision, since the inquirer would be required to refuse or withdraw from employment if it were offered to him personally by the defendant in this matter, certainly any partner or associate in the firm that employs him must also decline or withdraw.
    The inquirer feels that adequate provision can be made to protect the plaintiff from disclosure of confidential material but even if this is entirely possible the appearance of conflict would persist. The Committee believes it is clear that the firm employing the inquirer must immediately withdraw from the case.
    In Opinion 128, 91 N.J.L.J. 309 (1968), Attorney B inquired whether he could represent a husband in a suit for divorce, where in 1954 his client's wife had consulted Attorney A, at which time A and B were partners. No action then was taken; the partnership terminated in 1961 and A died in 1967. B states he never interviewed the wife nor were any confidences disclosed to B by his former partner. In declaring that B could not represent the husband, we said:
        For all intents and purposes, the client of one partner is a client of all the partners. If an attorney formerly associated with X could not handle a particular matter because of the prohibition contained in Canon 6 which "forbids also the subsequent acceptance of ... employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed," or the prohibition in Canon 37, which forbids the disclosure of confidential communications, X cannot handle the matter either. The inquirer here, however, states that no confidence had been reposed in him. But this Committee has made clear in the past that the appearance of conflict, even where no actual conflict exists, may require disengagement by an attorney from the matter which gives rise to such an appearance. See our Opinions 68, 88 N.J.L.J. 91 (1965) and 42, 87 N.J.L.J. 285 (1964).

    In the present inquiry it is certainly possible that the plaintiff could, with justification, feel aggrieved due to the representation of the defendant's insurance carrier by the inquirer's new employer.
    In Opinion 301, 98 N.J.L.J. 209 (1975), there was an inquiry as to whether the attorney could continue representing a client in a pending litigation which had reached the trial list stage, at which point a motion to join as a third-party defendant the bank which he represented in an unrelated matter, was appropriate on the basis of alleged forged documents. The third-party action would have been brought by the attorney's clients in the pending litigation as defendants-third-party plaintiffs, against the same bank which the attorney was defending in an unrelated forgery case and which bank the same attorney had represented in the past, although he was not the solicitor for that bank, and we decided he should ask the court to be relieved from the trial of the case.     In Wise, Legal Ethics 155 (1966) appears the following statement:
            The impropriety of taking a case against a former client is not based solely on necessity for disclosure of confidential communications. If the former client has any reason to feel aggrieved, the necessity of maintaining proper public relations for the bar and of avoiding the appearance of wrongdoing should cause the attorney to refuse to accept employment in a capacity adverse to the interests of a former client.

    Here, the inquirer because of his former employment by a firm representing the plaintiff, and because of his present employment by a firm representing the defendant's insurance carrier, can have nothing to do with the case, nor can his present employer have anything to do with the case.
    Nothing would be ethically accomplished by the resignation of the inquirer if his employer refused to withdraw, because his resignation would in no way permit his firm to continue in the case. Once the conflict comes into being, as it already has, it cannot be resolved simply by firing the associate in question or having him resign, since the associate's resignation could have no beneficial effect on the employer's responsibility. To the same general effect, see Opinions 155, 92 N.J.L.J. 358 (1969); 205, 94
N.J.L.J. 451 (1971); 209, 94 N.J.L.J. 454 (1971); and 216, 94 N.J.L.J. 677 (1971).

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