Can a lawyer who once clerked at a firm now represent that firm's former client against the firm in a fee-collection suit?

Plain-English summary

Law firm ABC had represented client D for a substantial period, with active monthly work, while P was employed there as a law clerk with access to all files. ABC later sued client D to recover fees, and the firm of P and Q now represented client D in that action. P said that during his clerkship he never worked on, saw the file for, or discussed client D's matter. The question was whether P and Q could represent client D against ABC.

The opinion concluded yes. It noted that P was not a licensed attorney bound by the Code when he clerked, but is now and must govern his current conduct by it. The opinion found no breach of client confidentiality under DR 4-101 and no conflict of interest under DR 5-105, because the client P and Q now represent and the client ABC previously represented are one and the same. It observed that EC 2-32 and DR 2-109(A)(2) recognize the file is basically the client's, requiring a withdrawing or dismissed lawyer to give the client all papers and property to which the client is entitled. The opinion concluded that ABC's objection to its former employee representing its former client in defense of ABC's fee claim is not something the Code of Professional Responsibility addresses.

Currency note

This opinion was issued in 1983 under North Carolina's former Code of Professional Responsibility (the DR/EC framework), before the State Bar replaced the Code with the Rules of Professional Conduct (adopted 1985) and before the 2003 revisions to those Rules. The confidentiality and conflict principles it applied correspond to today's Model Rule 1.7 (current conflicts) and Model Rule 1.9 (duties to former clients). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a former law clerk now represent his old firm's client against the firm?

A: Yes, on these facts. The opinion concluded there was no confidentiality breach or conflict because the client P and Q represent is the same client ABC had represented.

Q: Why is there no conflict when the lawyer once worked at the opposing firm?

A: Per the opinion, confidentiality under DR 4-101 and conflict under DR 5-105 protect the client; here the protected client is the very person the new firm represents, so neither is implicated.

Q: Does the old firm's objection have any standing under the Code?

A: No. The opinion concluded that ABC's objection to its former employee defending its former client against ABC's fee claim is not addressed by the Code of Professional Responsibility.

Background and rules framework

The opinion applied DR 4-101 (confidentiality) and DR 5-105 (conflicting interests) of the former Code, which correspond to today's Model Rule 1.6/1.9 and Model Rule 1.7, together with the file-return principles of EC 2-32 and DR 2-109(A)(2). The analysis turned on the identity of the client on both sides of the matter, which eliminated any protected confidence or adverse interest.

Citations and references

Rules of Professional Conduct:

• North Carolina DR 4-101 and DR 5-105 (Code of Professional Responsibility; confidentiality and conflicting interests)
• North Carolina EC 2-32 and DR 2-109(A)(2) (return of the client's file)
• MR 1.7 (conflicts of interest)
• MR 1.9 (duties to former clients)

Other opinions cited:

• North Carolina CPR 3, CPR 315, and CPR 322 (the file is basically the client's)

See also

• NC Ethics Op. CPR 3: discharged lawyer's duty to turn over the file
• NC Ethics Op. CPR 315: turning a State-supplied transcript over to the former client
• NC Ethics Op. CPR 322: releasing DSS home studies in the client's file

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/cpr-328/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry:

Law firm ABC represented client D for a substantial period of time. During that time, client D's file had an active status in the firm with significant amounts of work being performed almost every month. While law firm ABC represented client D, P was employed as a law clerk for law firm ABC. P had access to all files and information at law firm ABC during his employment there.

Law firm ABC is now suing client D to recover fees for services rendered. The law firm of P and Q represents client D in this action. The "P" in this law firm is the same "P" who was employed as a law clerk for law firm ABC while law firm ABC was representing client D. P contends that, during his employment as a law clerk of law firm ABC, he never did any work relating to client D, he never saw the file or any documents relating to client D, and he never discussed the case with any of the partners or associates of law firm ABC.

Under these circumstances, may law firm P and Q ethically represent client D in the action brought by law firm ABC to recover fees for services rendered to client D?

Opinion:

Yes. P, of course, was not a licensed attorney bound by the Code of Professional Responsibility at the time he was employed by law firm ABC, but he is licensed now and must govern his current actions by the Code of Professional Responsibility. However, there is no question of breach of client confidentiality under DR 4-101 or of conflict of interest under DR 5-105 since the client now represented by P and Q and the client previously represented by law firm ABC when lawyer P was a law clerk for that firm are one and the same. EC 2-32 and DR 2-109 (A) (2) recognize that the file is basically that of the client's when they require that a withdrawing or dismissed lawyer provide the client with all papers and property to which the client is entitled. See also CPR's 3, 315, 322. The objection of law firm ABC to their former employee's representation of their former client in defense of the claim brought by law firm ABC is not one which the Code of Professional Responsibility addresses.