97 N.J.L.J. 362
May 16, 1974
Conflict of Interest
Representing Husband of
Party Sued in Different Action
Inquiry has been made whether an attorney may properly
represent a plaintiff-wife in a slander action where he is
representing in a workmen's compensation case the husband of the
defendant in the slander action. The latter suit is still pending.
The attorney is unaware of any confidences reposed in him in connection with the compensation case of the husband of the defendant in the slander action which would affect the interest of
his wife, who is the defendant in the slander action. He states that no common subject matter is involved; that both actions are unrelated; that the husband is not a party to the slander action and that there is no basis for joining him. He cites N.J.S.A. 37:2-8 which provides that a married woman is solely responsible for her torts and damages which may be recovered from her alone.
We have written several opinions on similar situations. In Opinion 154, 92 N.J.L.J. 353 (1969), it was said that a lawyer may bring a suit against a former client if the representation of the former client has been ended and the matter doesn't involve confidential communications. In Opinion 249, 96 N.J.L.J. 221 (1973), we held that a law firm which previously represented a husband in a workmen's compensation case and subsequently represented him in a products liability action with the wife suing per quod could not represent the husband in a matrimonial action between husband and wife.
In Opinion 216, 94 N.J.L.J. 677 (1971), we quoted former Canons of Professional Ethics, Canon 37 which provided:
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.
In the present inquiry both cases are still pending. The public would not understand how an attorney can sue a woman and at the same time represent the woman's husband in another proceeding. The attorney's action would be viewed with suspicion. Attorneys must avoid the appearance of wrongdoing. It is the appearance of a conflict which renders the representation of the wife in the slander action objectionable. Where a doubt exists as to the propriety of representing plaintiff-wife under these circumstances, the doubt should be resolved against accepting the retainer.
In Opinion 6, 86 N.J.L.J. 718 (1963), we stated: "To maintain public confidence in the bar, it is necessary not only to avoid equal wrongdoing, but even appearance of wrongdoing."
For the reasons set forth, the attorney should withdraw from further representation of the plaintiff in the slander action.