89 N.J.L.J. 507
August 4, 1966
OPINION 97
Divorce Against Former Criminal Client
An inquiry has been made by an attorney stating that in 1957,
he was assigned by the Superior Court in his county to defend a man
who was indicted for murder. The State sought and obtained the
death penalty. The attorney, thereafter, appealed the verdict and
the judgment and the conviction were reversed and the matter was
remanded for further proceedings. Thereafter, the defendant pleaded
to the indictment and was sentenced to life imprisonment in the New
Jersey State Prison where he is still serving his term.
The attorney states that the wife of the man whom he
represented in the murder case now wants him to represent her in a
divorce proceeding to be instituted against the husband and he asks
whether it would be proper for him to represent the wife in such an
action for divorce, contending that the interests of his former
client, the husband, are not adverse in the sense that they are in
conflict with or hostile to the interests of the wife. He reports
that the action for divorce would be on the ground of a desertion
which apparently came about because the defendant became enamored
of another woman. This occurred prior to the commission of the
crime and had no bearing upon it. The inquirer says that the other
woman did not in any way figure in the murder trial. The evidence
respecting the grounds for divorce was within the personal
knowledge of the wife, and the inquirer did not secure this
evidence as a result of his conferences with the husband.
This entire inquiry revolves itself around Canons of
Professional Ethics, Canon 6, which obligates an attorney to
represent his client with undivided fidelity and forbids subsequent
employment from others affecting the interests of the client
conceding which confidence has been reposed.
The general rule is that when an attorney has acted for one
party, he cannot render services professionally against the former
client and the theory is that information and confidences acquired
during the existence of the former relationship of attorney and
client should not be used to the detriment of the former client.
The test is not whether the attorney has appeared for the
party against whom he now appears, but whether his accepting the
new retainer will require him in advancing 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.
We are not unmindful of the fact that in preparing the
husband's case when he was on trial for murder, the attorney and
the husband thoroughly confided in each other and everything
pertaining to his life was considered, weighed and discussed by
counsel in preparing for a defense to the accusation of murder. It
cannot be doubted that during such conferences the reason why the
defendant left his wife and his relationship with the other woman
were discussed. Is it then not normal for the husband to feel that
he has been wronged in some way, now that he is in State Prison, to
be confronted by an action against him by the same attorney whom he
had previously consulted concerning his most serious legal problem?
We have mentioned in many of our opinions that to maintain
public confidence in the bar, it is necessary not only to avoid
actual wrongdoing, but even the appearance of wrongdoing. N.Y.
County Lawyers Ass'n., Committee on Professional Ethics, Opinion
202 (1922). See also, Opinion 6 of this Committee, 86 N.J.L.J. 718
(1963).
The general rule is that information not acquired by an
attorney in confidence may be freely divulged. See Canon 37 and see
also, ABA Comm. on Professional Ethics and Grievances, Opinion 154
(1936). However, in our Opinion 86, 88 N.J.L.J. 773 (1965), we
quoted from In re Mattera, 34 N.J. 259 (1961), where the court
states, at page 24, "There is always a possibility, however remote,
that confidential information received from the original client may
be used to his detriment."
We are of the opinion that when the attorney represented the
husband in his trial for murder, it was his duty and he obviously
did represent him with undivided fidelity, and we must, likewise,
assume that there were secrets or confidences present in his
negotiations with his client. In the opinion of this Committee, the
inquirer should not undertake a divorce action for the wife of the
attorney's previous client.