Ethics Opinion 139

Ethics Opinion 139

5.28.1970

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION

Professional Ethics Committee Opinion

Opinion #139 – 05/28/1970 (16-70)
Topic:  Conflict of interest; Confidences and secrets of client

Digest: Attorney may accept professional employment in litigation in which a defendant is a former client where such employment does not require disclosure of confidential information obtained in course of former employment
Code: Canon 4, EC 4-5, EC 4-6

QUESTION

An attorney had represented three brothers in a litigation involving title to a piece of realty owned by the brothers as tenants in common. The subject of the controversy was a net lease on the premises, an action to bar claims by possible distributees in the chain of title, the clearing of numerous objections to title and eventual sale of the premises. Upon completion of his services, the attorney made full and complete accounting to the brothers.Four years later, one of the brothers died owning other parcels of real estate in common with his brothers unrelated to the former litigation. The estate of the decedent now wishes to retain the attorney to institute proceedings against the other brothers with regard to the other real estate held in common by them. May the attorney represent the estate in such proceeding?

OPINION

The Committee is of the opinion that it is proper for the attorney to represent the estate provided: (i) the subject matter of the prior litigation is totally unrelated to the proposed litigation (ii) the new employment will not require the attorney to use confidential information obtained in his former litigation (ABA 165 (1936); EC 4-5, 4-6; also DRINKER, Legal Ethics, p. 109 and cases therein set forth); and (iii) the attorney’s prior relationship with the brothers who are to be defendants in the proposed litigation was not such as to create an impression of professional disloyalty.