Can a lawyer who approved a sales agreement for a buyer later represent the seller in suing that buyer for default under the same agreement?

Plain-English summary

An attorney had represented a purchaser in negotiating a conditional sales agreement for equipment, approving documents prepared by the unrepresented vendor with minor changes. About two years later, the vendor asked the same attorney to represent it against the purchaser for the balance in default under that agreement. The attorney had not represented the purchaser since signing, except for one contact on a rent-adjustment matter, and asked whether he could properly represent the vendor.

The Committee concluded it would not be proper for the attorney to represent the vendor. It reasoned that such representation might require the attorney to assert an interpretation of, or a claim under, the agreement he had approved for the purchaser, and an attorney should not attempt to nullify his own work. Even if he were not required to urge such a contention, the Committee said he may not make such a change in allegiance, because that would impair the confidence a client has the right to repose in his attorney and tend to destroy an essential of the professional relationship.

The Committee added that, irrespective of any actual detriment, the purchaser might feel wronged when confronted by an action brought by the same attorney who had advised him on the same agreement, and that maintaining public confidence in the bar requires avoiding even the appearance of wrongdoing.

Currency note

This opinion was issued in December 1963, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), and well before the 1984 Rules of Professional Conduct and all later revisions. It applied Canon 6 of the former Canons of Professional Ethics. Duties to former clients and conflicts of interest are now governed by RPC 1.9 and RPC 1.7. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Could the lawyer take the vendor's case against the buyer he had earlier advised?

A: No. The Committee held it improper, because the suit could require him to assert a claim under the agreement he had approved for the buyer.

Q: Did it matter that the lawyer might not actually have to attack his own drafting?

A: No. The Committee said that even if not required to urge such a contention, he could not make that change in allegiance, which would impair the former client's confidence.

Q: Why did the appearance of wrongdoing matter?

A: The Committee reasoned that the buyer could feel wronged facing his former adviser as an adversary, and public confidence in the bar requires avoiding even the appearance of wrongdoing.

Background and rules framework

The opinion applied Canon 6 of the former Canons of Professional Ethics, which required undivided fidelity to the client and forbade later employment by others affecting an interest as to which confidence had been reposed. Duties to former clients are now found in RPC 1.9, with current-client conflicts in RPC 1.7.

Citations and references

Rules of Professional Conduct (as in effect at the time):

• Canon of Professional Ethics 6 (adverse influences and conflicting interests)

Other opinions cited:

• ABA Committee on Professional Ethics and Grievances, Opinions 64 (1932), 71 (1932)
• N.Y. County Lawyers Ass'n, Committee on Professional Ethics, Opinions 157 (1918), 202 (1922)
• Drinker, Legal Ethics 113 (1953)

See also

• NJ ACPE Op. 158: Suing a Former Client
• NJ ACPE Op. 211: Action Against a Former Corporate Client
• NJ ACPE Op. 154: Suing a Former Client in an Unrelated Matter

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp6-1.html

Original opinion text

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

86 N.J.L.J. 718
December 19, 1963

OPINION 6
Conflict of Interest
Action Against Former Client

An attorney represented a purchaser in the negotiation of a conditional sales agreement for certain equipment required for the operation of the purchaser's business. The vendor corporation was not represented by an attorney, but one of its officers attended the closing. Documents previously prepared by the vendor were approved with some minor changes by the attorney for the purchaser.

About two years later, vendor, through the same officer, requested the attorney to represent it to proceed against the purchaser for the balance in default under the conditional sales agreement. The attorney has not represented the purchaser since the time of the execution of the agreement, but was in contact with him once relating to a rent adjustment matter.

The attorney inquires whether it is professionally proper for him to represent the vendor under these circumstances.

It is the Committee's opinion that it would not be proper professional conduct for the attorney to represent the vendor. Such representation might well require the attorney to assert an interpretation of, or a claim under the agreement which he approved for the purchaser. An attorney should not attempt to nullify his own work. A.B.A. Committee on Professional Ethics and Grievances, Opinions 64 (1932), 71 (1932); Drinker, Legal Ethics 113 (1953). Even if the attorney were not required to urge such a contention, he may not make such a change in allegiance. Such conduct would tend to impair the confidence which a client has the right to repose in his attorney and would thus tend to destroy one of the essentials of the professional relationship. Committee on Professional Ethics, N.Y. County Lawyers Assn., Opinion 157 (1918).

Irrespective of any actual detriment the purchaser might suffer, he might naturally feel that he had in some way been wronged when confronted by an action against him by the same attorney whom he had employed to advise him concerning the same agreement. To maintain public confidence in the bar, it is necessary not only to avoid actual wrongdoing, but even the appearance of wrongdoing. Committee on Professional Ethics, N.Y. County Lawyers Assn., Opinion 202 (1922). See Canons of Professional Ethics, Canon 6, which obliges an attorney to represent the client with undivided fidelity and forbids subsequent employment from others affecting any interest of the client with respect to which confidence has been reposed.