(dissenting). This appeal is by permission of the court below from an order denying a motion of defendant to require the present attorneys for the plaintiff to retire from the cause. The ground of the motion is that prior to the institution of the action they accepted a retainer from defendant to represent her in the controversy. The action is for goods sold and delivered. Defendant had a charge account with the plaintiff during 1931. In the middle of that year she authorized a Miss Fluke to make purchases against that account, with the understanding, which she claims to have conveyed to plaintiff in writing, that the amount of such purchases was not to exceed the sum of fifteen dollars. When she received bills approximating the sum of $400, most of which represented purchases made by Miss Fluke, she registered complaint at the store of plaintiff. The assistant credit manager in charge of her account suggested that she proceed against Miss Fluke, and upon her request "for the co-operation of plaintiff in the recovery of the amount of the purchases • from that person, he directed her to plaintiff’s present attorneys “ to render any assistance within their power to accomplish that result.” Thereupon defendant called upon these attorneys and, as they admit, requested them “ to take such action and proceeding on behalf of Bloomingdale Bros., Inc., as might result in their collecting from Mildred Fluke as much as possible of the purchase price.” The attorneys were disinclined to do so, because they believed that lady to be financially irresponsible. Finally they agreed to undertake to *763recover from Miss Fluke on behalf of plaintiff, if defendant would advance the sum of ten dollars, which she did. The attorneys prepared a summons in an action against Miss Fluke, but finding it difficult or impossible to serve her, they abandoned any further steps in that direction. On being thereafter informed that defendant refused to pay the balance of the account which comprehended the Fluke items, they instituted suit against her, according to plaintiff’s instructions.
Upon these facts, which are virtually admitted, the court below refused to direct the attorneys to withdraw, on the ground that “ there is a serious doubt as to whether the attorneys for the plaintiff ever appeared for this defendant in the above entitled action.”
What was the purpose, it may be asked, for which the attorneys requested defendant to advance the sum of ten dollars? The small sum, to be sure, could not be intended to fully compensate them for their services, but it might be said to be in the nature of advance disbursements in a contemplated action. If the latter was to be brought on behalf of Miss Hudson as plaintiff against Miss Fluke as defendant, there would be little doubt of the impropriety of a subsequent appearance by these attorneys on behalf of the present plaintiff against their former client.
The general rule is thus stated in Hatch v. Fogerty (40 How. Pr. 492, 503): “ It is fundamental in respect to the duty of an attorney towards his client, that he should not use any information which he has derived from his client, to the prejudice or injury of his client; and especially, that he shall not act in opposition to his client’s interests; and the rule is, as laid down in Ferg. J. Prac. 27, that lest any temptation should exist to violate professional confidence, or to make any improper use of information which an attorney has acquired confidentially, as well as upon principles of public policy, ‘ he will not be permitted to be concerned on one side of proceedings in which he was originally in a different interest.’ ”
Here, the attorneys take the position that they never represented the defendant, but that the itemj pf ten dollars was a mere disbursement furnished by her in an action to be instituted by this very plaintiff against Miss Fluke. Assuming this to be the fact, was the action against the latter intended for the advantage of the plaintiff or for the benefit of the defendant? A consideration of the circumstances compels me to the conclusion that the abortive Fluke action was primarily designed for the benefit of the defendant, and initiated at her very request. Without any further effort beyond attempting to secure service of the process upon Miss Fluke, these attorneys abandoned the proposed action and began a suit *764against Miss Hudson. In doing so, it seems to me, they placed themselves in an equivocal position. Their previous services, even if prompted by their loyalty to the plaintiff, were influenced to a substantial degree, at least, by the request of Miss Hudson, and by her willingness to advance the disbursements.
Moreover, while no action against Miss Fluke actually had been commenced, the obligation to proceed with such suit nevertheless continued. If their client refused to permit them to continue in the Fluke suit and insisted upon action against Miss Hudson, it is perfectly patent that these attorneys could not undertake such a charge without some measure of infidelity to the confidence reposed in them by this defendant. I feel with Lord Chief Justice Hobart (Yardley v. Ellill, Hob. 8, 9) that an attorney “ oweth to his client fidelity, secrecy, diligence and skill,” and cannot take a reward on the other side. The client here in need of professional assistance was directed to these, her legal advisers. The relation which sprang up between them made necessary that she “ lay her case ” before them. In doing this, she naturally made disclosures which in the eyes of the law are privileged communications. These may be said to have been made with the absolute confidence that the guaranty of inviolable secrecy is cast over them. Obviously, this veil may never be drawn aside so as to expose them to public scrutiny.
Quite apart from the opportunity which these attorneys had to obtain from the defendant ante litem motam her version of the transactions, they are now in a position where, while an undischarged promise to the defendant is yet unfulfilled, they have begun an action against her.
Accordingly, I view their role as attorneys for the present plaintiff as inconsistent with their previous activities at the request and in behalf of defendant. While I do not regard their conduct as willful or the subject of censure, I believe this practice, no matter how innocent, of dangerous tendency, and should be discountenanced.
In the circumstances I dissent and vote that the order be reversed and the motion granted. ,