94 N.J.L.J. 677
July 29, 1971
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.