88 N.J.L.J. 773
December 2, 1965
Husband-Wife, Clients Confidences
A wife consults an attorney as to her marital problems. She
does not retain him as her attorney. No notes are taken and no
retainer is paid. Assume same facts, but that a consultation fee is
Some time later, the husband consults the attorney relative to obtaining a divorce. Is there a conflict of interest and is the
attorney prevented from representing the husband?
The answer must be in the affirmative to both questions. Canons of Professional Ethics, Canon 6 precludes an attorney from representing conflicting interests, and further forbids the disclosure of secrets or confidences and from subsequently accepting retainers, or employment, from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.
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.
The lawyer, by refusing to accept the case, for any reason whatsoever, including the inability or refusal of the client to pay the requested retainer, would give himself a "free hand." Such is not the case. Our Supreme Court, In re Blatt, 42 N.J. 522 (1964), said, after finding no violation of the specific language of Canons 6 or 37, that the Court's disciplinary power is not confined to the area covered by the Canons, citing In re Mattera, 34 N.J. 259 (1961).
The Court further said:
It is self-evident that where 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 and we find respondent guilty of unethical conduct. In re Blatt, 42 N.J. 522, 524 (1964).
To the same general effect, see N.J. Advisory Committee on
Professional Ethics, Opinion 26, 87 N.J.L.J. 19 (1964).