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Opinion #25 - 02/09/1966 (15-65)

Topic: Compromise of Prior Client's Confidences

Digest: Improper for lawyer to undertake suit against former client where client's secrets or confidences might be divulged

Canon: Former Canon 6

QUESTION

An attorney who represented a self-insured client in the defense of a claim for personal injuries arising out of the condition of premises is later asked to represent a plaintiff in a second and unrelated accident making claim against the former client. The attorney inquires whether:

(a)        he may undertake the suit against his former client, and

(b)        if so, may he properly make use of the file of the plaintiff in the original action, through the attorney in that suit?

OPINION

The Committee believes that the answer to question (a) is "no".

Canon 6, in part reads:

"The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidence forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed."

Although it is clear that the two accidents are unrelated, and that the facts as to the first were made public by the filing of a notice of claim in a public office, it is also clear that both accidents occurred by reason of the same defect in the premises. Under such circumstances the language in In Re Boone 83 Fed. 944, at 952-3, seems appropriate:

"The test of inconsistency is not whether the attorney has ever appeared for the party against whom he now proposes to appear, but it is whether his accepting the new retainer will require him, in forwarding the interests of his new client, to do anything which will injuriously affect his former client in any matter in which he formerly represented him, and also whether he will be called upon, in his new relation, to use against his former client any knowledge or information acquired through their former connection."

on the subject generally, see:

Drinker - pg. 104 Opinions, N.Y. Co. Lawyers' Assn., #350, 220, 119.

Question (b) becomes academic.