The Court therefore finds that an implied attorney-client
relationship existed between Ms. Weeks and Ms. Kohn, and that Ms.
Kohn reasonably believed that Ms. Weeks was her attorney.
Having determined that an implied attorney-client relationship
existed between Ms. Weeks and Ms. Kohn, the Court must now
determine whether disqualifications of Ms. Weeks is required in
light of the ethical obligations imposed on her under New Jersey
and Federal law.
As stated previously, "[w]hen an attorney represents
potentially and foreseeably adverse interests . . . and the
adversity becomes actual, counsel must withdraw from any
representation of both parties and all fees may be forfeited."
DeBolt, 234 N.J.Super. at 484, 560 A.2d at 1330; see also In
re Lanza, 65 N.J. 347, 351, 322 A.2d 445, 448 (1974) (stating
that where an attorney "found himself in a position of
conflicting loyalties . . . . [he] should have immediately
withdrawn from the matter, advising both parties to secure
independent counsel of their respective choosing."). Thus, where
an attorney jointly represents multiple parties and a conflict of
interest arises between the two, the attorney is ethically
obligated to withdraw and not represent either party. See
Worldspan, L.P. v. Sabre Group Holdings, Inc., 5 F. Supp.2d 1356,
1357 (N.D.Ga. 1998) ("Once the dual representation has begun,
courts are usually reluctant to simply let a firm pick and choose
which client to keep and which to drop."); Coaker v. Geon Co.,
890 F. Supp. 693, 695 (N.D.Ohio 1995) ("Because Pryatel has been
representing both clients, he cannot simply `decline proffered
employment' with one of the two defendants."); Florida Ins.
Guar. Ass'n, Inc. v. Carey Canada, Inc., 749 F. Supp. 255, 261
(S.D.Fla. 1990) (recognizing that when a conflict of interest
arises in the course of a concurrent representation, the attorney
cannot simply convert the disfavored client into a former one to
avoid the conflict).
Furthermore, the fact that the attorney-client relationship
between Ms. Weeks and Ms. Kohn was only implied does not mitigate
Ms. Weeks's duty to withdrawal. See, e.g., Laurelle Mfg. Corp.
v. Truly Yours, Inc., 1987 WL 6433, at *3 (S.D.N.Y. Feb. 5,
1987) ("A formal prior attorney/client relationship need not be
established before disqualification on conflict of interest
grounds can be deemed appropriate. In some circumstances, mere
consultation with an attorney involving the exchange of
confidential information may be enough to disqualify the attorney
from opposing the would-be client in subsequent proceedings."
(citations omitted)); see also Liu v. Real Estate Inv. Group,
Inc., 771 F. Supp. 83, 86 (S.D.N.Y. 1991) ("[T]he duty to
preserve confidentiality extends to preliminary consultation by a
prospective client even though actual employment does not
result."). In analogous circumstances to this case, the Liu
Court noted that "allowing an attorney who is in a position to
use confidential information gained through a relationship with
the client's adversary would give the client an unfair
advantage." Liu, 771 F. Supp. at 87.
New Jersey's Rules of Professional Conduct echo this viewpoint,
despite the absence of a rule exactly on point. See, e.g.,
R.P.C. 1.7(a) ("A lawyer shall not represent a client if the
representation of that client will be directly adverse to another
client"); R.P.C. 1.9(a)(1) ("A lawyer who has represented a
client in a matter shall not thereafter . . . represent another
client in the same or a substantially related matter in which
that client's interests are materially adverse to the interests
of the former client"). The Canons of Professional Ethics of the
American Bar Association also reflect this policy. See, e.g.,
Model Code of Prof'l Responsibility § DR 5-105(B) ("A lawyer
shall not continue multiple employment if the exercise of his
independent professional judgment in behalf of a client will be
or is likely to be adversely affected by his representation of
another client"); Model Rules of Prof'l Conduct § 1.16(a)(1)
(requiring withdrawal from representation when continued
representation would require violation of rules governing
attorney-client relationship). The New York Code of Professional
Responsibility does, in fact, directly address this situation.
See N.Y.Jud.Law § EC 4-5 (McKinney 1999), notes of decision ¶
2, N.Y. State 84-555 ("An attorney representing joint clients
must withdraw from the joint representation if information
obtained `in confidence' from one of the joint clients gives rise
to a conflict of interest with the other joint client").
Furthermore, in an ethics opinion, the New Jersey Supreme Court
came to the same conclusion. See In re Opinion No. 415, 81 N.J. 318,
322-23, 407 A.2d 1197, 1199 (N.J. 1979) (noting that, where
an attorney represents two governmental clients, the attorney
"must withdraw when representation of one governmental body in a
particular litigation or matter conflicts with an interest or
position of the other.").
Here, it is clear that, at a minimum, Ms. Kohn's communications
with Ms. Weeks during the June 30, 1996 meeting were, in part,
with a view towards her becoming an individual client of Ms.
Weeks. During this meeting, Ms. Kohn clearly disclosed
confidential information which lead Ms. Weeks to conclude that
Ms. Kohn might be personally liable to the school, Ms. Weeks's
other potential client. Ms. Weeks was not free, under the
applicable ethics rules and decisions, to accept this
information, choose which client to represent, and then to
utilize the information against one of the two prospective
In light of the above rules and decisions and this Court's
finding that an attorney-client relationship existed between Ms.
Weeks and Ms. Kohn during which confidential information was
conveyed, Diane K. Weeks, Esq. must be disqualified from
representing Montgomery Academy in this suit against Carolyn Kohn
For the foregoing reasons, the Defendant's Motion to Disqualify
Plaintiff's Counsel will be granted. An appropriate order will