86-F-104 - Representation adverse to Former Client

FORMAL ETHICS OPINION 86-F-104


Inquiry is made concerning the ethical propriety of representation adverse to a
former client.


The inquiring attorney undertook to defend the Tennessee Consolidated Retirement System in a
declaratory judgment action brought by his former client, and others, to construe their benefits
and rights pursuant to the general retirement statute. The plaintiffs seek to have certain
provisions of recent retirement legislation declared unenforceable. They assert that the recent
statute constitutes "special legislation," decreased benefits with no corresponding grant of
benefits, fails to comply with the "Pennsylvania Rule" applicable to such legislation, and assert
that the State is obligated by contract to honor the superseded legislation.
Six years earlier the inquiring attorney represented the former client, now one of the plaintiffs,
concerning a different portion of the retirement statute. The issue in the former matter was
whether the former client's rights in the retirement program had become vested. The inquiring
attorney, on behalf of the former client, insisted that his rights became vested after nine years and
six months service; whereas the administrator of the retirement program insisted that his rights
were not vested until completion of ten years service. The matter was resolved favorably to the
former client, without resort to litigation, when the inquiring attorney called attention to an
Attorney General's Opinion specifically ruling on the matter consistent with the precise wording
of the statute which states, "In computing the length of time of service, fractions of a year or six
months or more shall be treated as a full year of service." No client confidences or secrets were
involved in the resolution of the matter.
The Retirement System has now consistently followed the Attorney General's Opinion and the
precise wording of the statute on the nine years and six months issue, and there is no question
about its continuing to do so. Furthermore this issue is not raised in the recent litigation.
The Board has previously addressed the ethical propriety of representation adverse to a former
client. Formal Ethics Opinion 84-F-65 issued by the Board on January 18, 1984 states:
The continuing ethical responsibilities of an attorney to a former
client are:
(i) to continue to preserve the confidences and secrets of the former
client,
(ii) to abstain from attacking the resolution of any legal matter
accomplished on behalf of the former client, and
(iii) to abstain from representing another party in an action
involving the former client---arising out of or closely related to the
previous legal matter---.
86-F-104 Page 2
In the matter now under consideration it appears that the resolution of the question in the former
matter is not involved in the instant matter. It further appears that the position of the defendant
in the present matter is in no way inconsistent or adverse to the interest or position of the former
client in the previous matter. There was no communication of information by the former client
of a confidential nature or that may now be used adversely to the interest of the former client.
The remaining question to be resolved is whether the present legal matter is so closely related to
the previous legal matter as to create an impropriety.
86-F-104 Page 2
In deciding whether a substantial relationship between the two legal matters exists, the scope and
subject matter of the former and present representations must be examined. It must be
determined whether the subsequent representation is adverse to the matters at issue in the
previous relationship.
The matter at issue in the previous representation was whether the client's rights had become
vested. This matter was successfully resolved in behalf of the former client by insisting that the
retirement system follow the precise wording of a portion of the statute.
The matters at issue in the present litigation are whether the general statute is constitutional,
constitutes "special legislation," or whether the superseded legislation constitutes a contractual
obligation.
It is concluded that there is no substantial relationship between the two legal matters and that the
subsequent representation is not adverse to the matters at issue in the previous relationship.
Therefore, there is no ethical impropriety in representing the Retirement System adversely to the
former client.
The other questions raised by the inquiring attorney are, whether the former client's present
lawyer should file a disqualification motion with the Court; and, whether the lawyer should
voluntarily withdraw when adverse counsel raises the question of disqualification.
This Ethics Opinion will not attempt to resolve these questions; however, the following
comments appear to be appropriate.
Resolving questions of conflicts of interest and impairment of independent professional
judgment are primarily the responsibility of the lawyer undertaking the representation. Where
the conflict is such as clearly to call in question the fair or efficient administration of justice,
adverse counsel may properly raise the question. Caution should be used in raising such
questions by objection, for it may be viewed as a misuse of an objection as an unjustified means
of obtaining an advantage or as a means of harassment.
86-F-104 Page 3
This 4th day of August , 1986.
ETHICS COMMITTEE:
C. T. Herndon III, Chairman
Michael E. Callaway
G. Wilson Horde
APPROVED AND ADOPTED BY THE BOARD