NEW YORK STATE BAR ASSOCIATIONProfessional
Ethics Committee Opinion
Opinion #54 - 03/31/1967
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
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?
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.