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                                         119 N.J.L.J. 505
                                        March 26, 1987



Appointed by the Supreme Court of New Jersey

Conflict of Interest -
Representation of Client in
Personnel Matter Against Former Client

    The inquirer has, in the past, represented a charitable organization in tax litigation and in connection with real estate transactions and has also given advice concerning the status of the client as a charitable entity. Fees have been billed and paid for services rendered and there has been no continuing retainer.
    It is asserted that during the course of this representation, the inquirer did not deal with personnel matters and has not had access to confidential information except with respect to the particular matters noted above. At all times his contact with the organization was ". . . through its chief operating officer." That officer now wishes to retain the inquirer and to commence suit against the organization ". . . in an employer-employee type of action."
    The Committee has frequently rendered opinions concerning the propriety of suing former clients. See Opinions 154, 92 N.J.L.J. 353 (1969); 367, 100 N.J.L.J. 415 (1977); 391, 101 N.J.L.J. 209 (1978); 425, 103 N.J.L.J. 495 (1979); and 450, 105 N.J.L.J. 129 (1980). In Opinion 391 we said:

    For recent decisions discussing the disqualification of attorneys to sue former clients, see Akerly v. Red Barn System, Inc., 551 F. 2d 539, 544 (3 Cir. 1977), and Fund of Funds v. Arthur Anderson & Co.,    F. 2d (2 Cir. November 7,1977). Cf. 64 Yale L.J. 917, 928 (1955), "Disqualification of Attorneys for Representing Interests Adverse to Former Clients." In the Fund of Funds case, the court prefaced its opinion with the statement, "When dealing with ethical principles. . . we cannot paint with broad strokes. The lines are fine and must be so marked." [Citing several cases.]

    These situations are primarily governed by the provisions of RPC 1.9 which provides that:
    (a) A lawyer who has represented a client in a matter shall not thereafter:

        (1) represent another client in the same or a substantially related matter in which that client's interests are materially adverse to the interests of the former client unless the former client consents after a full disclosure of the circumstances and consultation with the former client; . . .

    While a strict and narrow reading of RPC 1.9 against the assumptions which we are given would lead one to conclude that such representation would not, prima facie, be improper, it is always prudent in such situations to secure the informed consent of the former client. In this case, given the relationship between the inquirer and the "chief administrative officer" of the organization which is the putative defendant in a proposed action, we are of the opinion that the informed consent of the former client is necessary.

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