99 N.J.L.J. 496
June 3, 1976
Conflict of Interest
Against Former Client Wife
The following inquiry has been made:
May an attorney represent a long-standing client of his firm
in a matrimonial action against his wife, A? Approximately five
years ago, the firm represented A in a divorce action against her
former husband. She then married her present husband whom the firm
desires to represent.
The present husband seeks a divorce and a property settlement. A has had another attorney represent her during the past five years. There have been no conferences whatever between A and the inquirer since the time of her present marriage, and the inquirer has no knowledge of any facts relating to the present marriage, except as a result of his conferences with the present husband.
In our Opinion 6, 86 N.J.L.J. 718 (1963), and Opinion 86, 88 N.J.L.J. 773 (1965), we held that where an attorney had consulted with one of the parties and had learned of facts relating in the first opinion to a conditional sales agreement and in the second to an existing marriage, he should not later appear on behalf of either party. In Opinion 216, 94 N.J.L.J. 677 (1971), we reviewed a number of our opinions where a conflict of interest might arise in matrimonial litigation.
In Painter v. Painter, 65 N J. 196. 215 (1974), Justice Mountain, speaking for the Supreme Court, in interpreting N.J.S. 2A:34-23, held that the court is authorized to distribute equitably "the property, both real and personal, which was legally and beneficially acquired by them [the spouses] or either of them during the marriage. This would also include assets, title to which is received by gift or inheritance, or indeed in any other way. When the attorney represented the wife several years ago in her prior matrimonial action, he might have received confidential information from her as to assets which she might inherit or assets which might have been set aside for her under a trust arrangement. This confidential information might create a conflict and could be used adversely against the wife in determining the equitable distribution of the property owned by the parties. It is because of this potential knowledge that the attorney should withdraw from the case and should not represent either party.