ETHICS OPINION 472-1958 CONFIDENTIAL COMMUNICATIONS

NUMBER 472

QUESTION.

 

Since 1955 I have represented “A” in various legal matters, including a Will Contest in the Surrogate’s Court of New York County.

 

In the course of our relationship “A” introduced me to “B”, a friend and business associate of his. “B” thereupon retained me in various legal matters, including an action now pending in the Supreme Court, New York County. “A” had full knowledge of my being retained by “B” and of the matters entrusted to me.

 

Controversies have arisen between “A” and “B”. The grounds for these controversies are claims which “A” asserts against “B” for services rendered. These controversies are unrelated to any matters in which I formerly represented “A”.

 

“A” has now threatened “B” with court proceedings and “B” has requested me to represent him in these proceedings.

 

“A” has broken off all personal and business relations with me since November, 1957. I first learned of his disputes with “B” in April of 1958.

 

Will it, under the rules laid down by your Committee, be permissible that I represent “B” as a party defendent in an action instituted by “A”?

 

ANSWER.

 

In our opinion, it would not be improper for an attorney to represent “B” as a party defendant under the circumstances set forth in the question in a contemplated action to be brought by “A” if he will not be required or tempted to divulge or use any confidences formerly reposed in him by “A” in what are stated to be entirely unrelated matters.

 

Canon 37 of the Canons of Professional Ethics of the New York State Bar Association places on a lawyer the duty to preserve his client’s confidences and expressly states: “This duty outlasts the lawyer’s employment – – -.” It also states that this duty to preserve the confidences of a former client must never prevent the performance of his full duty to his new client. If such a conflict of duties appears to be possible or likely, the proposed retainer should not be accepted.

 

Dated: October 22, 1958.