A Passenger who was injured in a collision between two automobiles has requested a lawyer, to whom she was referred by the owner- driver of the car in which she was riding, to represent her in a personal injury action against the owner- driver of the other car. The lawyer has advised both the passenger and the referring party that it will be necessary for the passenger to sue both owner- drivers. The lawyer, about three years before, represented the referring party as plaintiff in another automobile accident case, which case was settled before trial to the satisfaction of his client, but since then has received no employment from that party and will not represent him in the present case.
The lawyer inquires if in the circumstances he may properly represent the passenger in her claim?
In the absence of any confidential information obtained by the inquiring attorney in the course of his former representation of the referring owner-driver, which information might tend to embarrass or be detrimental to the interests of his former client in the contemplated lawsuit, there is no impropriety in the proposed representation of the passenger.
The relevant standard was previously stated by this Committee in New York County 517 (1963):
“In order that the proposed representation be proper it must be clear that the proceedings against the former client will not involve any matter with respect to which ‘confidence has been reposed’ and will not involve ‘disclosure or use’ of confidences of the former client. . . . The inquiring attorney must address himself to those questions on the basis of his knowledge of his prior relationship with his former client. If there is any possibility that knowledge gained during the prior period of representation would give the inquiring attorney any advantage whatsoever in the prospective litigation against his former client, the proposed representation should be refused.”
See, DR 4-101; EC 4-6; New York County 535 (1964), 549 (1966); New York State 191 (1971).
February 27, 1973