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                                             99 N.J.L.J. 610
                                            July 8, 1976


Appointed by the New Jersey Supreme Court


Conflict of Interest
Former Associate of Firm Suing Physician
New Representing Physician in Different Action

    An attorney inquires as to the propriety of his action in the following case. He was associated with a firm representing a plaintiff in a medical malpractice action against a physician in which he performed services on behalf of the plaintiff. He now practices with another firm and seeks to represent that physician in a matrimonial action.
    In the malpractice action the attorney supervised the preparation of the files for trial and took part in decisions concerning discovery, motions, and other related matters. He then terminated his association with the firm which is suing the physician in the malpractice action and has undertaken to represent the physician in a divorce action, which is unrelated to the malpractice suit. Both cases are presently pending and are under discovery stage.
    It is urged that the attorney should disassociate himself from representing the physician in the matrimonial action because he may reveal to the physician certain confidences, gained during the malpractice suit. The interests of the physician are hostile to those of the plaintiff in the malpractice suit.

        Wise, Legal Ethics 272 (1970) states:
                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.

        It continues at page 273:

                'No man can serve two masters.' 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.

    Our Committee has stated on a number of occasions that the appearance of conflict, even when no actual conflict exists, may require disengagement by an attorney. See our Opinion 42, 87 N.J.L.J. 285 (1964), and 128, 91 N.J.L.J. 309 (1968).
    For the reasons set forth, it would he improper for the former associate and his present firm to continue to represent the physician in the matrimonial action.

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