89 N.J.L.J. 56
                                        January 27, 1966

OPINION 89

Confidential Communications
Husband-Wife Clients

    An attorney was engaged to represent a client with respect to a personal injury claim. In handling the matter he met his client's wife several times and upon one occasion received a telephone call from her, complaining of her husband's conduct and stating that he and she were now living apart. She did not seek advice from the attorney nor ask him to retain his services. The attorney promptly advised his client of the telephone call. A few days later the attorney learned that his client's wife had retained independent counsel with whom he, the attorney, had a brief conversation. An apparent reconciliation between husband and wife followed. Some time later, husband and wife having again separated, the latter telephoned the attorney to ask if he would request her husband to deliver certain articles of personal property to her. The attorney declined to make the request. About two months later the husband was served with a complaint for support in an action instituted by his wife. The attorney appeared on behalf of the husband and the matter was adjusted without a hearing. The husband now requests the attorney to represent him in a proposed action for divorce based upon recent adultery on the part of the wife. The attorney asks whether, especially in the light of N.J. Advisory Committee on Professional Ethics, Opinion 86, 88 N.J.L.J. 773 (1965), he is at
liberty to act for the husband in the manner suggested.
    It is the opinion of the Committee that he is at liberty to undertake this representation. The earlier telephone calls received from his client's wife were entirely unsolicited and furthermore apparently were in no way concerned with the subject matter of the presently proposed litigation. She did not seek to retain his services nor did she indicate that she might wish to do so in the future. In Opinion 86, supra, the situation was entirely different. There we determined that an attorney might not represent a husband in a divorce action where the wife had earlier consulted the same attorney with respect to her marital problems. The decision was reached despite the fact that she had not retained the attorney, he had taken no notes and no retainer was paid. We cited Canon 6. In
order, however, for this canon to apply in a situation of this sort, there must have been an earlier attorney-client relationship or a communication must have been made with the expectation that such a relationship might ensue. An entirely unsolicited conversation foreshadowing in no way an immediate or future attorney-client relationship cannot be taken as evoking the sanctions of this canon.
    Canon 37, to which reference is also made in Opinion 86, is likewise irrelevant. In the case we are considering there were no confidential communications incident to an existing or prospective attorney-client relationship. Furthermore, information not acquired by an attorney in confidence may be freely divulged. A.B.A. Comm. on Professional Ethics and Grievances, Opinion 154 (1936).