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                                         99 N.J.L.J. 241
                                        March 25, 1976

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court


OPINION 323

Conflict of Interest
Casual Confidences
Previously Made by Opposing Spouse

    This inquiry presents the question of whether an attorney must withdraw from representing the wife in a matrimonial controversy which has not yet reached the litigation stage but where future litigation is possible or even probable.
    The husband of the marriage involved is an attorney who had been on a friendly basis with the inquiring attorney. The husband contends that while he and the inquirer were jointly engaged in an unrelated matrimonial action, in a casual conversation he related to the inquirer confidential matters regarding his personal life, problems relating to a pending divorce action involving his own marriage and the "strategy” which he intended to apply with respect to his wife after the conclusion of the divorce proceedings. The inquirer does not deny that any such conversation took place but does deny the relevance, materiality, or confidentiality of any communication from the attorney husband with
respect to any contemplated future proceedings.
    Sometime after the aforesaid conversation and the finalization of the divorce of the attorney husband, and through a third party's
recommendation, the inquirer was retained by the wife to initiate further proceedings relating to post-divorce problems. The attorney husband protested and this inquiry resulted.
    There is no indication in the inquiry or related papers that any attorney-client relationship either present or contemplated existed between the inquirer and the attorney husband at the time of the alleged conversation, nor does it appear that the alleged confidences were disclosed to the inquirer in the course of the attorney husband seeking legal advice.
    In our opinion the problem presented by this inquiry (assuming the relevance, materiality, and confidentiality of the disclosure) is not related to the fact that the husband involved is an attorney, but rather that he is the opposing party. The question is whether an attorney in such a relationship with another person as to be the recipient of confidences relating to matters which are the subject of pending and prospective litigation may thereafter represent the opposing side in respect to the very matter concerning which the confidences have been reposed.
    No authority has been cited either pro or con on this question. The closest authority the Committee's own research has revealed is ABA Comm. on Professional Ethics and Grievances, Opinion 47 (1931), dealing with the inadvertent disclosure to adverse counsel of confidences of a party to prospective litigation. In that case, the disclosure was held to require the recipient to withdraw from representation of the adverse party. In that case, however, the adverse counsel had solicited information, although not the confidences, when he was representing the adverse

party, for the purpose of bringing the litigation to which the disclosures were relevant. The facts in the present inquiry appear to be quite different. The confidences appear to have been gratuitously thrust upon the inquirer, unsolicited, at a time when the inquirer had no connection with either the prospective litigation or the client.
    Under the above-recited facts, the Committee has been unable to perceive any disciplinary rule which would be violated by the continued representation of the wife by the inquirer. We believe the facts recited represent a matter for serious consideration of the inquirer in view of the ethical considerations involved in the old Canons of Professional Ethics, Canons 22 and 29, relating to obligations of candor and fairness and upholding of the honor of the profession, and also the present DR 1-101 and the ethical consideration embodied in EC 1-5.     In the last analysis, however, the committee is of the opinion that matters such as are presented by this inquiry must remain a matter for the conscience and Judgment of the individual attorney. It cannot rule, therefore, that the continued representation of the wife by the inquirer is improper.
    Furthermore, the inquirer should be mindful of DR 5-101, relating to the acceptance of employment when he might be called as a witness in contemplated litigation.

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