99 N.J.L.J. 777
September 2, 1976
Conflict of Interest - Former
Attorney for Reciprocal Wills
Representing Husband Against Wife
The inquirer has been asked to represent a husband in a
divorce proceeding. Several years ago, he was asked by the husband
to draw reciprocal wills for himself and his wife. The attorney
received all his information regarding drawing of the wills, both
financial and otherwise, from the husband. He states that no
specific information was given to him by the wife. Subsequent to
drawing the wills, the attorney represented the husband and the
husband's business, but he had no further contact with the wife. He
now seeks the opinion of this Committee as to whether he may
represent the husband in a matrimonial proceeding against the wife.
Our Opinion 97, 89 N.J.L.J. 507 (1966), stated the general rule that:
When an attorney has acted for one party, he cannot render services professionally against the former client and the theory is that information and confidences acquired during the existence of the former relationship of attorney and client should not be used to the detriment of the former client.
The test is not whether the attorney has appeared for the party against whom he now appears, but whether his accepting the new retainer will require him in the interests of his new client, to do anything which will injuriously affect his former client in any matter which he formerly represented him.
The general rule thus expressed was applied in our Opinion 216, 94 N.J.L.J. 677 (1971), and in Opinion 275, 96 N.J.L.J. 1458 (1973). All the relevant and applicable prior opinions of this Committee bearing on the issue presented are cited in these two opinions, and they consistently apply the philosophy of this Committee to the effect that an agreement to represent one spouse against the other where there been prior dealings between an attorney and both spouses should be very cautiously entered into by the attorney. Thus, the admonition in Opinion 216, supra.
However, under the circumstances described in this inquiry, there apparently was no prior opportunity for the inquirer to have
obtained any confidential information from the wife which could in any way injuriously affect her in the prospective matrimonial proceedings in which the inquirer will represent her husband. Thus Opinion 216, sups, rather than Opinion 275, supra, should control here. Applying the general rule and test referred to above in our Opinion 97, supra, there can be no other result.