94 N.J.L.J. 677
July 29, 1971
OPINION 216
Conflict of Interest - Former Attorney
Representing Wife Against Attorney
An attorney inquires whether he may represent a wife in a
divorce proceeding against her husband when he previously
represented the wife and husband in the purchase of a home and had
represented the husband to the extent of calling a debtor of the
husband.
The attorney states that he had represented the wife prior to
the marriage and that no charge was made for the call to the
debtor. He states that he has spoken to the husband on a few
occasions with regard to another home he and his wife were
contemplating purchasing although nothing came of this and no legal
fees were charged. He states that in his conversations with the
husband they never discussed the marital situation nor was he aware
of any difficulties until they were related to him by the wife. He
states that he knows of no confidences told by the husband which
would be pertinent to the contemplated matrimonial matter. Canons
of Professional Ethics, Canon 6 imposes a duty on a lawyer "to
disclose to the client all the circumstances of his relations to
the parties, and any interest in or connection with the
controversy," and forbids "the subsequent acceptance of retainers
or employment from others in matters adversely affecting any
interest of the client with respect to which confidence has been
reposed." Canon 37 provides, in part:
It is the 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.... A lawyer should not continue
employment when he discovers that his
obligation prevents the performance of his
full duty to his former or to his new
client....
In the case of In re Braun, 49 N.J. 16 (1967), the Court
considered a presentment charging that an attorney violated the
Canons of Professional Ethics, Canons 6 and 37, in that he had
advised a husband and wife, with a view to reconciliation, and
subsequently represented one against the other in a divorce action.
The Court said, at page 18:
The factual contention of respondent that
no actual confidence was received is without
merit even if true. The intent of Canons 6
and 37 is violated whenever the conduct of an
attorney raises the possibility that he has or
may use the confidences of one client for the
benefit of another. In re Blatt, 42 N.J. 522,
524, (1964). Therefore, after respondent had
attempted to counsel both husband and wife
with a view to reconciliation at the meeting
of June 1964, he could not thereafter with
propriety represent either in a divorce
action. N.J. Advisory Committee on
Professional Ethics, Opinion 26, 87 N.J.L.J.
19 (1964). And apart from the meeting of June
1964, after respondent discussed the marital
and financial problems of complainant in April
l965, it was highly improper for him to agree
to substitute himself as attorney for
complainant's wife in her divorce action. N.J.
Advisory Committee on Professional Ethics,
Opinion 86, 88 N.J.L.J. 773 (1965). To be
distinguished are those instances in which the
attorney at all times represents one party,
and his contact with the other party is
limited to non-confidential situations wherein
the adversary position of the attorney is
clear. N.J. Advisory Committee on Professional
Ethics, Opinion 89, 89 N.J.L.J. 56 (1966).
Thus, in our Opinion 128, 91 N.J.L.J. 309 (1968), which
concerned the propriety of an attorney representing a husband in a
divorce action where the wife had consulted the former partner of
the attorney about her matrimonial difficulties during the
existence of the partnership, we held that it would be unethical to
do so even though the attorney had never interviewed the wife and
no confidences were disclosed to him by his former partner.
In our Opinion 155, 92 N.J.L.J. 358 (1969), a client of a
legal services organization had received unrelated advice
concerning criminal charges but had also been represented by the
legal services organization "relating to a Domestic Relations Court
appearance." Six months after that, his wife came to the legal
services corporation (actually its successor) and sought to be
represented by the legal services organization. We held that the
organization, like an attorney, could not ethically proceed with
the divorce action on behalf of the wife against the husband whom
it had formerly counseled in a domestic relations matter.
On the other hand, in our Opinion 154, 92 N.J.L.J. 353 (1969),
we held that an attorney could properly undertake an action against
an individual whom the attorney had formerly represented in an
unrelated matter. We noted that in all our prior opinions upon this
general subject matter there had been some connection between the
prior representation and the new matter either as to parties, or
subject matter. ... [We noted that] a lawyer may bring a suit
against a former client if the representation of the former client
has been ended and the matter does not involve confidential
communications. Drinker, Legal Ethics 112 (1953). The mere fact
that an attorney had at an earlier time represented the adverse
party does not, in itself, foreclose the attorney from undertaking
the new matter.
The test is whether the policy expressed in Canons 6 and 37
would be violated.
On the facts stated in this case and assuming that there were
no confidences or confidential information obtained with respect to
the financial capacity or resources of the husband, we conclude
that it would not be improper for the attorney to represent the
wife in the matrimonial litigation.
A note of caution is in order, however. If the husband
believes that the attorney should not represent the wife or
contends that there is a conflict of interest or alleges that the
attorney is taking advantage of confidential information which had
previously been imparted to him then the attorney would be obliged
to reevaluate the situation. Recently, see our Opinions 205, 94
N.J.L.J. 451 (1971), and 209, 94 N.J.L.J. 454 (1971). We directed
the attention of the bar to the language we used in Opinion 42, 87
N.J.L.J. 285 (1964), where we said, the spirit of the Canons not
only requires the avoidance of any conflict of interests but
anything that might give rise to a belief in the minds of the
public or others that a conflict in fact exists which may be used
unfairly to the disadvantage of the first client.
We repeat, therefore, that we do not feel a definite conflict
of interest has presented itself on these facts but we caution the
attorney to take the appropriate action in the event his former
client protests his representation on the basis of the disclosure
or advantage of any confidential information.