86-F-104 - Representation adverse to Former Client




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the "Pennsylvania Rule" applicable to such legislation, and assert that the State is obligated by contract to honor the superseded legislation.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---.

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.

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.

This 4th day of August, 1986.


C. T. Herndon III, Chairman
Michael E. Callaway
G. Wilson Horde