92 N.J.L.J. 825
December 18, 1969
Conferences of Client Divorce Action
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.
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.
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.
Opinion 287 (1953) the situation was as follows:
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."
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?
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.
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
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
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
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.
In reversing the lower court, Justice Schettino said:
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.
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.