87 N.J.L.J. 737
November 19, 1964
Conflict of Interest
Opposing Kin of Deceased Client
An attorney represented a husband having marital difficulties
and separated from his wife. Following a successful conference, the
parties were reconciled.
The husband is now deceased and the wife has instituted an action, under the Wrongful Death Act for the death of her husband, to recover damages on behalf of the next of kin. The attorney who originally represented the husband is a partner of the law firm presently representing two of the defendants in the death action. Inquiry is sought as to possible conflicts of interest.
Canons of Professional Ethics, Canon 6 states:
It is unprofessional to represent conflicting interests...
The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.
Drinker, Legal Ethics (1953) states:
The test of inconsistency is not whether
the attorney has ever appeared for the party
against whom he now proposes to appear, but it
is whether his accepting the new retainer will
require him, in forwarding the interests of
his new client, to do anything which will
injuriously affect his former client in any
matter in which he formerly represented him,
and also whether he will be called upon, in
his new relation, to use against his former
client any knowledge or information acquired
through their former connection. In Re Boone,
83 F. 944, 952-3, (Cir. N.D. Cal. 1897)
The injunction not to represent conflicting interests applies equally to law partners representing different clients who have interests conflicting with one another;... at pp. 105-106.
Our N.J. Advisory Committee on Professional Ethics, Opinion
26, 87 N.J.L.J. 19 (1964), states:
Canon 37 imposes upon an attorney a
strict obligation to preserve his client's
confidences, and the duty thus imposed extends
beyond the time of his employment. This canon
also enjoins a lawyer from using confidences
reposed in him to the disadvantage of the
Recovery from wrongful death under the New Jersey statute is for the benefit of the next of kin of the deceased, and the basis of recovery is the pecuniary loss sustained by each. The action outlined in this inquiry is for the benefit of the widow of the deceased and their two minor children. At the time of death, the deceased had been separated from his wife for two weeks, and surely this fact will be brought out at the trial by the defense in the hope that this evidence will be considered by the jury to minimize its verdict.
The knowledge and information obtained by the law partner in representation of the husband in a prior separation of the husband and wife, is chargeable to counsel representing two of the defendants in this action, who will be called upon to use it against his former client.
It is the opinion of this, Committee that the representation as outlined in this inquiry is in violation of the Canons of Professional Ethics and, further, that its opinion will not affect the interests of the parties in the present litigation.
Correspondence relating to this inquiry, which raises new inquiries pertaining thereto, has been received by the Committee subsequent to the initial inquiry, involving disputed factual and legal questions in the pending action, which in the opinion of this Committee might affect the interests of the parties and therefore may not be accepted by the Committee.