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                                             95 N.J.L.J. 253
                                             March 23, 1972


Appointed by the New Jersey Supreme Court


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

we restated the guidelines to be considered before accepting a retainer adverse to a former client. We said:
            The impropriety of taking a case against a former client is not based solely on necessity for disclosure of confidential communication. 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 which is adverse to the interests of the former client.

    Raymond L. Wise in his book on Legal Ethics summarizes the

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 attorney Z.

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