Ethics Opinion 096

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION
Professional Ethics Committee Opinion

Opinion #96 – 01/30/1969 (30-68)

Topic: Conflict of interest
Digest: Improper for a lawyer to defend an appeal for a new client when a successful defense would be detrimental to the interest of a former client in a related matter
Canons: Former Canons 6, 37

QUESTION

An attorney represented a certain party as a plaintiff in a subrogation action.  Before trial this action as consolidated with other actions in which this same client was a defendant.  The issues in the subrogation action were not tried but it was stipulated that a verdict for the attorney’s client as defendant in the other actions would entitle his client to recover in the subrogation action.  The trial in the consolidated actions resulted in a jury verdict for the plaintiff.The attorney has subsequently become associated with the film representing the plaintiff who obtained the jury verdict and wishes to know whether it is ethical for him to argue the appeal on behalf of such plaintiff respondent.

OPINION

It would not be proper for an attorney to argue such an appeal. Such a conclusion is not affected by whether or not the attorney actually participated actively if the trial in which his original client was named as defendant, nor does it depend upon whether the attorney obtained confidential information in the course of such trial which might affect the conduct of the appeal. On the facts as stated, it would obviously be in the best interests of the original client for the verdict in the case that was tried to be reversed on appeal and therefore it would be unethical for the attorney to urge affirmance of this verdict to the detriment of his original client.

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