Opinion #156 – 10/09/1970 (45-70)
confidences, conflict of interests
Topic: Representation in Action Against Former Client
Digest: Not proper to be attorney in action against former client who previously discussed matter with attorney
Code: EC 4-6; DR 5-105 (D)
An attorney’s former firm represented an insurance carrier on a regular basis. The attorney resigned from his former firm about two years ago, is now a member of another firm, and has been requested to represent a plaintiff in a negligence action against a defendant who is the local agent of the carrier. The accident occurred while the attorney was with his former firm. The defendant claims that he discussed the accident with the attorney at the time it occurred, and that he did so because he regarded the attorney as his regular counsel. The attorney had a social relationship with the defendant and his former firm represented him in some matters, but the attorney does not recall any discussion of the accident with the defendant, doubts that such discussion occurred, denies in any event that it was in an attorney-client relationship, and suggests that perhaps the consultation was with one of his former partners.
If there is a reasonable possibility that the defendant did discuss the matter with the attorney under the circumstances claimed, the attorney should not act in the action. The matter is put as follows in Wise “Legal Ethics”, pp. 283-4:”…The test as to whether a communication or fact must be held to be confidential and treated as such is simply whether or not it was received in a lawyer’s professional capacity, while the relation of client and lawyer existed, no matter how temporary.”Thus, it does not matter whether a fee was paid or whether, after the encounter with the client, the attorney refused the case or withdrew before taking any overt action.”The question is whether at the time the confidence was imparted the person regarded the lawyer as acting in a legal professional relation toward him. The deciding factor is what the prospective client thought when he made the disclosure, not what the lawyer thought. “As further stated in Wise “Legal Ethics”, p. 272:”The impropriety of taking a case against a former client is not based solely on necessity for disclosure of confidential communications. If the former client has any reason to feel aggrieved, the necessity of maintaining proper public relations for the bar and of avoiding the appearance of wrongdoing should cause the attorney to refuse to accept employment in a capacity adverse to the interests of a former client.”The lawyer must always put the interests of his client ahead of his, individual interests…”The fact that the attorney is no longer with his former firm and does not recall the discussion makes no difference. EC 4-6. See also N.Y. County #557. If the defendant believes that he discussed the matter professionally with the attorney and there is a reasonable possibility that the defendant is correct, this is enough to preclude the attorney’s participation. It is important that there be no appearance of impropriety.If the discussion was with one of the attorney’s former partners, the attorney is likewise foreclosed from acting. See DR 5-105 (D).