111 N.J.L.J. 513
May 19, 1983
Conflict of Interest Steering -
Attorney, Spouse of a Real Estate Salesperson
This inquiry concerns the propriety in representing parties to
a real estate matter where the spouse of the attorney [or of his
partners, etc.] is the realtor or sales person whose firm has
listed or made the sale of the property to be dealt with by the
In our Opinion 312, 98 N.J.L.J. 646 (1975) we held that where the spouse of an attorney was the listing or selling agent it was improper for that attorney to represent either party to the transaction. This was reaffirmed in our Opinion 341, 99 N.J.L.J. 610 (1976) where we held that where the attorney's spouse-realtor did not obtain the listing and did not make the sale, there was no impropriety in that attorney's representation of either party to the sale.
In both of the above Opinions we discussed the matter of solicitation or steering. In Opinion 312, supra, we held that an attorney may represent a client who has been referred to him by the agency in which his spouse is employed, provided that client asks the agency for a reference.
We also held that when a client asks an attorney to recommend a realtor, the attorney may refer the client to his spouse and her employing agency; and, if a sale develops, he may represent that client, provided the spouse was not the listing or selling broker.
The rationale behind these Opinions deals with inherent conflict of interest where the attorney's duty of unswerving allegiance to the client may conflict with the interest of his spouse in a commission or other benefit that will accrue to the spouse if the deal goes through. The interest of the realtor-spouse is in effect an interest of the attorney-spouse. In Opinion 312, supra, we held that the consent of the client could not cure the impropriety; that the better course is for the attorney to avoid putting himself in the position where his client may conclude that he had not been well represented.
In the present inquiry it is suggested that where a client has a long-standing relationship with an attorney. The representation of that client should not be precluded because the attorney's spouse is the listing or selling broker and a fortiori where there is a full disclosure to the client of the espousal relationship.
Although the concept that husband and wife are "one person" may well be outmoded for many purposes, we still are of the opinion that the attorney whose spouse stands to win or lose in the performance of that attorney's duty to a client undertakes such representation at his peril even when the client, after full disclosure, gives consent. See Bartels v. Romano, 171 N.J. Super 23 (App Div. 1979), Goodwin Motors v. Mercedes, 172 N.J. Super 263 (App. Div. 1980).
Accordingly, we find no reason to make a distinction favoring the case where the client has had a long-standing prior relationship with a law firm. We hold to the views expressed in Opinions 312 and 341, supra, both on the issue of conflict and that of solicitation.