LEO: Conflict of Interest - Representing LE Op. 1039
Conflict of Interest - Representing Client in Same Manner
as Former Client Fees - Interest on Past Due Accounts.
February 17, 1988
Your letter raises two separate questions. First, you inquire whether it
is improper for you to represent the plaintiff in a personal injury action
when, several months prior to you being contacted by the plaintiff, the
defendant in the action consulted with your law partner regarding the
possibility of representation. You further indicate that your firm was
never retained to represent the defendant, that no fees were charged for
the defendant's consultation, and that your partner remembers nothing
regarding the substance of the consultation.
Your inquiry is controlled by DR:5-105(D), which provides that,
A lawyer who has represented a client in a matter shall not thereafter
represent another person in the same or substantially related matter if
the interest of that person is adverse in any material respect to the
interest of the former client unless the former client consents after
Thus, because it is quite clear from the facts that you have given that
the proposed representation would involve the same matter and that the
plaintiff and defendant will have adverse interests, the key question is
whether, for purposes of DR:5-105(D), your partner "represented" the
On point with this question is LE Op. 318, which provides that,
It is improper for an attorney to accept a case where a member of the firm
had previously consulted with the opposing party concerning the
possibility of representation unless the opposing party consents to such
Additionally, the Committee has previously opined that the payment of
fees is not a prerequisite to the initiation of an attorney-client
relationship. [ See, LE Op. 221 (Gratuitous Discussion of a Divorce
Action with Husband), LE Op. 452 (Gratuitous Discussion at a Social
Event); Rules of Court Part 6, § I: Definition of the Practice of Law].
Therefore, the Committee opines that based on the fact situation which
you have presented, representation of the plaintiff without disclosure and
consent of the defendant would be improper.
Your second inquiry deals with the logic behind prohibiting lawyers from
charging interest on past due accounts. Extensively discussed in LE Op.
186B, the Council based this opinion on the rationale that the imposition
of an automatic finance charge ignores the personal element of the
attorney-client relationship inherent in Ethical Consideration 2-20's [
EC:2-20] admonition that, "the determination of a proper fee requires
consideration of the interests of both client and lawyer."
It is important to note that LE Op. 186B does not absolutely prohibit
the use of finance charges. Such charges are allowed if the client has
agreed to the amount of the attorney's fee, is able to pay, but desires
payment be deferred for his convenience. This arrangement is acceptable
provided that the client agrees to the terms, retains the right to
prepayment without penalty, and is not assessed a finance charge on fees
prior to the time that the fees are earned by the attorney.
Committee Opinion February 17, 1988
See also LE Op. 1146.