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RICHMOND COUNTY BAR ASSOCIATION
COMMITTEE ON PROFESSIONAL ETHICS
OPINION # 4
February 5, 1991.
The Committee is in receipt of an inquiry from a law firm concerning the propriety of representing a plaintiff
in a “slip and fall” personal injury suit against the owners of the premises at which the accident occurred.
The law firm represented the owners as plaintiffs in an unrelated motor vehicle accident case five
and a half years before taking on the representation of the present clients.
The issue raised by the inquiry is whether this representation against former clients requires
disqualification of the law firm as a conflict of interest.
A lawyer shall not knowingly use a confidence or secret of a
client to the disadvantage of the client, or to the advantage
of the lawyer or a third person. (DR 4—101(b)). The obligation
continues to exist after termination of the employment. (EC
4-6). The Disciplinary Rules, however, do not per se
prohibit a lawyer from representing a party against a former
client, provided:
(1) The subject matter of the employment is totally unrelated to matters in which the attorney has represented the former client;
(2) such representation will not injure the former client with regard to matters in which the attorney counselled him;
(3) The attorney does not have confidential information arising from his former representation that might be relevant
to the new matter; and
(4) The new representation creates no impression of conflicting interests or professional disloyalty in light
of the previous relationship with his former client.
(N.Y. State #303; also, #139).
As to numbers (1) and (2) above, it appears that the new employment is totally unrelated to the matter which was
the subject of the previous representation. The accidents involved occurred several years apart, at different locations,
with different causes of injuries. The latter element is important, for it distinguishes the facts now under
consideration with those set forth in N.Y. State #25. In that opinion, the attorney represented a defendant in a
personal injury claim allegedly caused by a defect in the defendant’s premises.
He proposed to represent a plaintiff against the defendant in a second unrelated incident arising out of the very same defect.
The committee believed this to be improper because the lawyer could have used information acquired about the defect
through his employment to the detriment of his former client (Also, N.Y. State #410).
Here , the law firm presumably counselled the former client as to his rights to recovery in the automobile accident,
which has no potential to injure him in the second suit arising out of an alleged defect on his property.
Concerning number (3), the inquirer states that his firm maintains
no financial records or any personal information sheets concerning
its clients except for information concerning the happening
of an accident. Assuming arguendo that the firm was in a position
to, and in fact did, obtain confidential financial information
from its former client, such information could not be used against
said client because it is irrelevant to this personal injury
litigation. The financial resources of either party is irrelevant
in any negligence action seeking compensatory damages. Laidlaw
v Sage, 158 N.Y. 73; Madigan v Schaghticoke, 143
A.D. 887, 128 NYS 800; Dufresne v Duemler, 108 A.D.2d
1102, 485 NYS2d 879; see, 36 N.Y. Jur. 2d, Damages § 11, and
57 N.Y. Jur. 2d, Evidence and Witnesses, § 214.
The issues of the former clients wealth or financial status
might be an issue if the jury were to return a verdict awarding
punitive damages. Prior v Brown Transport corporation,
103 A.D.2d 1042, 478 NYS2d 435; Rupert v sellers, 48
AD2d 265, 368 NYS2d 904; Chilvers v New York Magazine Company
Inc., 114 Misc. 2d 966, 453 NYS2d 153; 57 N.Y. Jur. 2d,
supra. The information provided to this Committee does not reveal
whether punitive damages are at issue in the present litigation,
the Committee assumes for purposes of this inquiry that the
lawsuit is one of a relatively routine nature, in which compensatory
damages only are sought.
As to the final element, it is inconceivable that a reasonable person would have the impression of professional disloyalty
or conflicting interests. There was no continuing professional or business relationship between the firm
(or any of its attorneys) and the former client after the first litigation was settled in April 1983.
Additionally, the length of time that passed until the current litigation ensued is also a factor in concluding
that no conflicts exist. (N.Y. State #329, 436).
Though this Committee cannot and does not pass upon questions
of law, it appears that the cases cited in support of disqualification
are inapposite. In each of the cases cited, [1]
the court specifically made a finding that the subject matter
of the second representation was related to the attorney s representation
of the client in the initial matter.
Under the facts presented and under the assumptions indicated the Committee can perceive no conflicts of interest
resulting from the proposed representation, and believes that there is no ethical restriction thereto.
Pursuant to Article VI, Section 19 of the R.C.B.A. By-Laws, please be advised that the statements contained herein
express the opinion of the Committee alone, and have not been passed upon by the Association.
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Wayne M. Ozzi
Chairman, Professional
Ethics Committee |
[1] Cardinale
v Golinello, 43 N.Y.2d 288; Sirianni v Tomlinson,
133 A.D.2d 391; Horowitz v Horowitz, 151 A.D.2d 646.
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