Conflict of Interest - Consultation with
Wife Precluding Representation of Husband
A woman conferred with a member of the inquirer's firm
concerning a possible matrimonial action. The inquiry does not make
clear whether it was he or another member of the firm with whom she conferred. No notes or history were taken, no retainer was paid, no fees for the conference were charged.
The matrimonial action against the husband was instituted by the woman through other attorneys. Neither the inquirer's firm nor any member of it was involved in this action, either in the trial court, the ensuing appeal to the Appellate Division or in the trial on remand.
The husband now desires to retain the inquirer to represent him in writing the appellate brief on his appeal to the Appellate Division from the trial court's Judgment on remand. The wife objects to the representation "since she has consulted with the inquirer at one time, although she never retained him."
The inquirer asks whether he may properly represent the husband. We think not.
A lawyer is required to decline proffered employment if the exercise of his independent professional judgment on behalf of a client will be or is likely to be adversely affected by the acceptance of such employment. DR 5-105(A). It makes no difference whether the husband now seeks to retain the attorney who was originally consulted by the wife or another member of the same firm. DR 5-105(D). A lawyer may not knowingly use a confidence of his client for the advantage of a third person, unless the client consents after full disclosure. DR 4-101(B)(3). Here, the wife has done more than withhold consent; she has expressly objected to the representation of the husband.
That the proposed retention of the inquirer is to write an appeal, based solely on the record and applicable law, does not mean, as the inquirer contends, that there is no possibility that
the inquirer will improperly disclose or use the wife's confidences. The confidences reposed in the inquirer might lead him to emphasize in his argument some parts of the record which he
would otherwise refrain from emphasizing or to minimize or ignore other parts of the record which he might otherwise stress. In the course of the appeal, the inquirer might characterize the wife or her behavior according to her demeanor observed or information gathered at the interview, even though we can safely assume that he would not directly mention the interview. Although the conflict here may seem somewhat tenuous, it is real and it is dispositive.
In In re Blatt, 42 N.J. 522, 524 (1964), the Court said:
[Wlhere a member of the bar represents a litigant in a cause, he should not thereafter represent the opposing party in any step in the proceedings in or arising out of the same cause. There is always a possibility, however remote, that confidential information received from the original client may be used to his detriment. Such conduct is plainly and patently unethical.
situation analogous to that presented here, we said:
The attorney seems to believe that
because he was not retained, made no notes,
and received no consultation fee, there would
be nothing improper in later representing the
other spouse. To this conclusion, we cannot
agree. If, after being consulted, the
obligation of an attorney to a prospective
client under Canon 6, to avoid representing
conflicting interests, or under Canon 37, to
preserve his client's confidences, were
limited to a case in which a retainer was
accepted, and notes were made by the lawyer,
every prospective client would be afraid to
consult a lawyer for fear that he might later
take the other side of the controversy.
See also Opinion 89, 89 N.J.L.J. 66 (1966).
Accordingly, we conclude that the inquirer and all members of
his firm are precluded from writing an appeal for the husband.