NYSBA Ethics Opinion 54

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION
Professional Ethics Committee Opinion

Opinion #54 – 03/31/1967 (4-67)

Topic: Conflict of Interest; Confidences of Client
Digest: Lawyer should decline employment where his knowledge of prior client’s case might work to disadvantage of prior client
Canon: Former Canon 37

QUESTION

In 1960-61 an attorney originally represented the wife when she secured a divorce and order for child support. Subsequently, in 1963-64 while there was no apparent dispute with his former wife, the attorney was retained by the husband for whom he secured a discharge in bankruptcy. In 1966 the former wife, having returned to her native Germany and knowing no other lawyers locally, requested that the attorney endeavor to secure delinquent child support payments from her former husband, who is now being represented by another attorney.Would it be ethically proper for an attorney to represent a former wife seeking delinquent child support payments if he had previously represented the husband in a matter involving his financial affairs?

OPINION

Canon 37, entitled Confidences of a Client, provides that “It is the duty of a lawyer to preserve his client’s confidences. This duty outlasts the lawyer’s employment …(who shouldn’t) accept employment which involves or may involve the disclosure of these confidences… to the disadvantage of the client, without his knowledge or consent.”Clearly, the attorney was informed in the bankruptcy proceedings of financial and other information which could be utilized to the detriment and disadvantage of the former husband-client.The lawyer in these circumstances should decline the employment unless he secures the consent of the former husband-client. (See also ABA opinion 150, 163; N.Y. City 98.)There would be no impropriety in aiding the former wife to retain local counsel, giving her the names and addresses of the local legal referral service, if any, or the name and address of several other attorneys who are known to engage extensively in similar matters.

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