98 N.J.L.J. 753
September 4, 1975
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however, that since the opinion was based on ABA Canons of Professional Ethics, Canon 6, and since Canon 6 has been superseded by DR 5-105, Opinion 43 may no longer be valid.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).