87 N.J.L.J. 285
May 7, 1964
Conflict of Interests
Actions Against Former Clients
An attorney who recently completed a term as county counsel inquires whether he may now appear for a private litigant in an action where the board of chosen freeholders is a party defendant. He indicates that any matter which he would undertake would be completely "disassociated from transactions that were handled while counsel to the governing body."
An attorney who serves as county counsel has among his clients as such the county and its board of chosen freeholders, which is the governing body of said county. When he ceases to serve as attorney to such a client, he cannot thereafter ethically accept a retainer with another client if the subject matter of his new retainer relates to any matters which were the subject of his services in any way as counsel to the first client (Canons of Professional Ethics, Canons 6 and 37).
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. While a former private client may consent to his appearance in a later case, even though a conflict of interest may be in involved, such consent cannot be obtained where the client is a public agency. Obviously, the dangers of such conflict of interests are much greater where the cessation of the attorney-client relationship as to the first client is relatively recent. It is frequently difficult to determine what information or knowledge of a confidential nature has come to a lawyer by reason of the attorney-client relationship, and certainly in considering a second retainer a lawyer should resolve any doubts in favor of his client. This is particularly so since the spirit of the Canons not only requires the avoidance of an actual conflict of interests but anything that might give rise to a belief in the minds of the
public or others that a conflict in fact exists which may be used unfairly to the disadvantage of the first client.