Rutgers School of Law, OAL case ACPE163

92 N.J.L.J. 825
December 18, 1969

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 163

Conferences of Client Divorce Action

FACTS

An attorney inquiries as follows:

        Mrs. A has applied through one of the county legal service organizations for representation in obtaining a divorce from her husband on the ground that he had deserted her in 1962.

        While interviewing Mrs. A, a staff attorney learned that she had committed adultery and that two of her six children were fathered by a man other than her husband, after her husband left.

        Adultery by a party seeking a divorce is likely to bar him or her from obtaining a divorce if this should become known to the court.

Another inquiry is as follows:

        Mr. A requests the attorney to file a suit for divorce on the ground of desertion, which the attorney believes to be meritorious. Mr. A also advises the attorney that since the desertion of his wife, he has been living with another woman and, in fact, has had a child with this woman.

QUESTIONS

    In each case, do the attorney's duties of candor and fairness (Canons of Professional Ethics, Canon 22), his duty not to participate in a fraud upon the court (Canons 15 and 41), and his duty to uphold the honor of his profession (Canon 29), require that he disclose the fact of adultery, or is he required not to reveal the adultery because of his duty to preserve his client's confidences (Canon 37)? If suit is instituted, must the attorney affirmatively disclose to the court, either in the complaint or at the hearing, that his client is living with another woman and has had a child by this woman?
    Because of the similarity of the facts of these cases, our opinion will dispose of both questions.

Canon 37. Confidences of a Client
It is a duty of a lawyer to preserve his client's confidences. This duty outlasts the lawyer's employment, and extends as well to his employees; and neither of them should accept employment which involves or may involve the disclosure or use of these confidences, either for the private advantage of the lawyer or his employees or to the disadvantage of the client, without his knowledge and consent, and even though there are other available sources of such information. A lawyer should not continue employment when he discovers that this obligation prevents the performance of his full duty to his former or to his new client.

OPINION

    The basic principles upon which this opinion is based are stated in our Opinion 116, 90 N.J.L.J. 688 (1967), wherein we traced the origin and rationale of Canon 37 and concluded that when a defendant admitted to his attorney he was guilty of a criminal charge and was advised not to take the stand, but, nevertheless insisted on testifying, taking the stand and denying the charge, counsel had no right to mention the conflict between the client's statement and his sworn testimony, or to withdraw from the case.
    With reference to the facts of the cases now before us, the American Bar Association, Committee on Professional Ethics, in a similar situation, by its Informal Opinion 869 (1965), held that the attorney for a plaintiff in a divorce action is not obligated nor ethically bound to advise the Court of his client's admission that she has become pregnant by a man other than her husband; he should advise the client that such adultery constitutes a defense if raised by the other party and that she must be truthful if questioned under oath or assert her constitutional right not to incriminate herself. The Committee mentioned that two ethics opinions from New York are to the same effect. The first is Assn. of the Bar, City of N.Y., Committee on Professional Ethics, Opinion 558 (1940). In that inquiry, the Legal Aid Society asked whether it was proper for the society to accept employment from a client who was seeking to obtain a divorce, where the society knew that the client had also committed adultery. The Committee ruled that the society could handle the case, citing Thompson v. Thompson, 127 App. Div. 296 (N.Y. App. Div. 1908), with the proposition that there would be no duty to disclose the adultery.
    The second is N.Y. County Lawyers Assn., Committee on Professional Ethics, Opinion 365 (1941), which was concerned with the same issue as in Opinion 558 above and reached the same result, based upon the Thompson case.
    Commenting upon these opinions and the Thompson case, Drinker, Legal Ethics 124 (1963), states: "It would seem to follow that the lawyer owes no duty to the State to disclose independent defenses to a divorce action."
    At page 133, Mr. Drinker refers to Ethics in Service by W. H. Taft (1915), wherein Judge Taft said:
        To require the counsel to disclose the confidential communications of his client to the very court and jury which are to pass on the issue which he is making, would end forever the possibility of any useful relation between lawyer and client.

    In A.B.A. Comm. on Professional Ethics and Grievances, Opinion 268 (1945), the facts were as follows:
    X consulted attorney A about procuring a divorce for him and told A he had not resided in the State the time required by the statute before he could legally file suit. X paid a consultation fee and went to attorney B where he made a false statement about his residence to B. B filed suit for X and a few days thereafter A learned of the filing of suit by B.     Was A, by any Canon of Ethics, relationship of attorney and client, or otherwise, prevented from telling the court, B, or anyone else, the facts related to him by X concerning X's residence?
    The Committee said:
        Canon 37 of the Association, entitled "Confidences of a Client" provides, in part, [i]t is the duty of a lawyer to preserve his client's confidences. This duty outlasts the lawyer's employment,.... ." Canon 29, entitled "Upholding the Honor of the Profession" provides, in part, "[t]he counsel upon the trial of a cause in which perjury has been committed owe it to the profession and to the public to bring the matter to the knowledge of the prosecuting authorities.

        The first of these provisions is designed to insure the client against disclosure by a lawyer of any information whatever given the lawyer by the client in the course of professional consultation. This duty of preserving the client's confidences is not dependent on whether a consultation fee is paid. If the relation of attorney and client actually attaches, any statement made by the client to the attorney in reference to the matter, as to which he consults the lawyer, is privileged against disclosure by the lawyer, regardless of the payment of any fee.

        While ordinarily it is the duty of a lawyer, as an officer of the court, to disclose to the court any fraud that he believes is being practiced on the court, this duty does not transcend that to preserve the client's confidences.

        It is not infrequently the case that a lawyer who has been retained by a client accused of crime, having been told by the client facts which make it certain that the client is guilty, declines to represent the defendant, insomuch as a successful defense cannot be hoped for without suborning perjury under such circumstances. In such case, the lawyer is bound by the Canon not to disclose the information received from the client in confidence, though he ascertains that the client, having subsequently retained another lawyer, has, in his defense, stated the facts to be otherwise.

    In A.B.A. Comm. on Professional Ethics and Grievances,

Opinion 287 (1953) the situation was as follows:

FACTS

An attorney represents a client in a suit for divorce and a decree for divorce from bonds of matrimony is duly entered by the Court on November 6, 1952, in favor of the client on the grounds of willful desertion and abandonment by his wife as of March 15, 1950. The wife was represented by counsel in the divorce action and she was fully apprised of the evidence presented on behalf of her husband. Three months after entry of the decree the client again comes to the attorney seeking advice by reason of the following situation: The client tells the attorney that he, the client, gave false testimony at the taking of the deposition upon which his decree for divorce was based; that the date of desertion was not March 15, 1950, as he had testified, but was actually the early part of November 1951 (which, under the local law, would have made the action premature); that his former wife threatens to disclose the true facts to the court unless support money is forthcoming. The client has not remarried, nor has his former wife."

INQUIRIES

What is the duty of the attorney to the court, as an officer of the court, after learning that the testimony of his client in the suit for divorce was false?

What is the duty of the attorney to his client, who, when seeking advice, disclosed the fact that he had testified falsely in the suit for divorce?

OPINION

The American Bar Committee said:

The crime of perjury has already been committed; the question is not one of preventing the commission of the crime, and the wife, being at least a tacit party to the fraud on the court, requires no protection.

In the case submitted to us, the communication by the client to the lawyer that he had committed perjury was made to the lawyer in his professional capacity, when seeking advice as to what to do, and is within the letter and the spirit of Canon 37, which would apply unless controlled by some other Canon or consideration.

Canon 41 provides as follows:

When a lawyer discovers that some fraud or deception has been practiced, which has unjustly imposed upon the court or a party, he should endeavor to rectify it; at first by advising his client, and if his client refuses to forego the advantage thus unjustly gained, he should promptly inform the injured person or his counsel so that they may take appropriate steps.

We do not believe that Canon 41 was directed at a case such as that here presented but rather at one in which, in a civil suit, the lawyer's client has secured an improper advantage over the other through fraud or deception.

Nor do we not think that because the state is considered an interested party to proceedings to sever the matrimonial relation of its citizens the state or the court may therefore be treated as an "injured person" within the meaning of Canon 41.

A more forcible argument for an exception to Canon 37 is found in Canon 29, which provides:

The counsel upon the trial of a cause in which perjury has been committed owe it to the profession and to the public to bring the matter to the knowledge of the prosecuting authorities.

On its face this provision would apparently make it the duty of the lawyer to disclose his client's prior perjury to the prosecuting authorities. However, to do so in this case would involve the direct violation of Canon 37.

    Accordingly, it is essential to determine which of the Canons controls.

    Neither Canon 41 nor Canon 29 specifically requires the lawyer to advise the court of his client's perjury, even where this was committed in a case in which the lawyer was acting as counsel and an officer of the court. We do not consider that either the duty of candor and fairness to the court, as stated in Canon 22, or the provisions of Canons 29 and 41 above quoted are sufficient to override the purpose, policy and express obligation under Canon 37.

In the case stated the lawyer should urge his client to make the disclosure, advising him that this is essential to secure for him any leniency in the event of the court's finding out the truth. He should also advise him to tell his wife that he proposes to do so, and thus void further blackmail. If the client will not take this advice, the lawyer should have nothing further to do with him, but despite Canons 29 and 41, should not disclose the facts to the court or to the authorities. Compare also Opinion 268.

In C. v. C., 54 N.J. 223 (1969), the court dealt with the
following facts:

        There was an uncontested divorce action stemming from defendant's alleged desertion of plaintiff in 1963. The trial judge was satisfied that defendant's desertion was established, but nevertheless, denied the divorce, holding that plaintiff's adultery in 1966 operated to bar her divorce under the doctrine of recrimination.
    Appeal followed.
    In reversing the lower court, Justice Schettino said:

The re-examination of recrimination as a viable doctrine has begun. In New Jersey recrimination once was applied mechanically and absolutely whenever the proofs disclosed that the complainant was likewise guilty of an offense against the marriage contract sufficient to justify a divorce for defendant were it the only offense established. Thus, the trial court in Wells v. Wells felt compelled to deny divorce by reason of the recriminatory defense of adultery notwithstanding that the committee's sympathies laid with the plaintiff. 73 N.J. Super. 546 (Ch. Div. 1962). The Appellate Division offend by a 2-1 vote. 79 N.J. Super. 388 (App. Div. 1963). We reversed 41 N.J. 594 (1964).

By our reversal in Wells we laid to rest the rule that recrimination is an absolute defense and an automatic bar to a grant of divorce which the trial judge must raise sua sponte when the proofs so justify. We indicated there that assuming a court has discretionary power to raise, sua sponte, a recriminatory bar, it was error to exercise that bar under the facts of Wells.

Since Wells, courts have occasionally declined to raise recrimination as a bar to a divorce in an uncontested case. e.g, X v. Y., 103 N.J. Super. 218 (Ch. Div. 1968); cf. B. v. S., 99 N.J. Super. 429 (Ch. Div. 1968). As was demonstrated by the trial court here, however, the practice has not been universal. Today, we hold that in an uncontested case, absent extraordinary circumstances, a trial court should not on its own motion raise a recriminatory defense. We qualify this holding only because it is not possible to foresee all situations which might arise. We emphasize, however, that the facts would have to be most extraordinary to justify departure from the basic rule that recrimination should not be raised sua sponte in an uncontested case.

    We leave open, however, the question which might arise in an uncontested case where a recriminatory act is suggested by the evidence, but where the facts indicate that the issue of the wife's support should not be foreclosed. In such a case it might not be unreasonable for the trial court, on its own motion, to condition relief in terms appropriate to protect the wife's interest. We also leave open the role of recrimination in a contested case.

CONCLUSION

        We are not unmindful of the problems which are raised by other Canons, such as 15, 22, 29 and 41, but based upon the facts stated, and since the defense of recrimination in divorce proceedings has been placed in a different perspective by recent developments in the law, C. v. C., supra, we are of the opinion that it is the duty of the lawyer to preserve his client's confidences and to do so, he must not disclose to the court facts which amount to an affirmative defense in the divorce action. He must point out to his client that if appropriate questions are addressed to her, she must be truthful and answer them, unless she declines to answer them on constitutional grounds.
    But see In re Backes, 16 N.J. 430 (1954), in which fraud was so patent as to cloud the issue of recrimination. While it was there stated that the State is in fact, if not in name, a third party having a substantial interest in every divorce, it would now appear by the ruling in C. v. C., supra at by the time there is a
litigated divorce case, there is little chance to restore life to what has become a dead and empty shell of its former being, and while the shell may be preserved, the family as a sociological unit is not. Hence the interest of the State is substantially diminished.

* * *

This archive is a service of Rutgers University School of Law - Camden