100 N.J.L.J. 415
May 12, 1977
Conflict of Interest
Suing Former Client in Unrelated Matter
Inquiry is made as to whether there is an impropriety on the
part of a member of a law firm which represents a plaintiff in an
action against the inquirer, who is an attorney-at-law of this
State, for libel and slander, by reason of prior representation by
a member of that firm of the inquirer in another unrelated matter.
The facts presented to this Committee are that the inquirer had consulted with one of the partners of a law firm with reference to a possible or probable representation by that firm of the inquirer's spouse, and presumably the inquirer per quod, in an alleged malpractice accede against a physician. The attorney in question advised the inquirer that he would consider the representation on a contingent fee basis, after having an opportunity to examine a number of documents which had been presented to him as well as consultation with medical experts. Sometime thereafter the inquirer was advised that the attorney would not be interested in undertaking the matter for reasons connected with the merits of the case and he thereafter returned whatever papers had been left with him to the inquirer. Some 16 months later, the inquirer was named as a defendant in a libel and
slander action in which the plaintiff is represented by another partner of the firm with which the inquirer had had his initial discussion regarding the malpractice action. The inquirer thereafter made demand upon the attorney representing the plaintiff in the libel and slander action to withdraw, alleging that there was a "conflict of interest." The request was refused.
The inquirer indicates that the law firm, or particularly the partner of the member representing the plaintiff in the libel and slander action, had had access to documents of a personal and private nature which contained confidential information relating to his wife's medical history, and that therefore the partnership has an ethical responsibility to preserve the confidences and secrets gained in its professional relationship pursuant to DR 4-101(A), (B) and (D).
This Committee has, on numerous occasions, dealt with the questions arising in situations of possible conflicts of interest and the propriety of an attorney suing a former client in both related and unrelated matters. It is clear that our Opinions 154, 92 N.J.L.J. 353 (1969), and 158, 92 N.J.L.J. 641 (1969), among others, are in point and controlling. In Opinion 154, supra, the inquiry related to a factual situation in which the inquiring attorney asked this Committee whether he might "properly undertake a negligence action against an individual whom the attorney had formerly represented in an unrelated matter, specifically, the defense of an assault and battery charge made against him in municipal court." This Committee held that if the initial litigation, viz the municipal court matter, had been completed and if the parties and circumstances involved in the municipal court matter were entirely different from those which gave rise to the negligence matter, the attorney might undertake the negligence action and in so doing he would not violate Canon 6 or 37. (Canon 6 is now included in DR 4-101 and DR 5-105. Canon 37 is now included in DR 4-101(b).) We have consistently held that "a lawyer may bring suit against a former client if representation of a former client has been ended and the matter does not involve confidential communications." See Opinion 154, supra.
The medical history which may have been discussed by the inquirer or by the inquirer's wife, or as contained in the medical documents, could not have been of such a nature as to have any bearing or relationship to the facts and matters involved in the libel and slander action. "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." Opinion 154, supra. This is particularly true where the two matters are wholly unrelated. See Opinion 158, supra. We, therefore, see no conflict of interest on the part of the law firm based upon the facts presented in this inquiry.