91 N.J.L.J. 369
June 6, 1968
Husband-Wife Reconciliation Conference
An attorney inquires whether he may continue to represent a
plaintiff wife in a divorce action in this situation.
About a year and a half ago, the attorney's services were retained by the wife concerning a possible divorce. There being a young child of the marriage, the attorney recommended a reconciliation conference at his office which was attended by both parties, the husband attending alone, preferring not to engage his own counsel. The conference was successful; the parties were reunited and lived in harmony for some time. Some 15 months later there was a recurrence of the previously alleged extreme cruelty; the wife again retained the same attorney to start suit for divorce. He was immediately importuned by the husband to hold another reconciliation conference. The attorney advised he would arrange for such a conference if the husband would appear with his own counsel. The husband refused to obtain independent counsel and insisted on seeing the attorney to discuss his wife's conduct and the possibilities of reconciliation. Thereupon, the attorney consented to discuss the matter with the husband at his office for which he charged and received a conference fee of $25 after receiving the client wife's approval of such arrangements.
Despite the previous advice to the husband to retain his own counsel and the husband's insistence on not doing so the husband nevertheless expressed his doubts several times during the conference as to whether he should discuss the matter with the attorney who each time urged him to leave the office and obtain independent counsel. Each time the husband refused and insisted on proceeding with a discussion of the conduct of the parties and their teenage daughter and the possibilities of a reconciliation
with his wife. Reconciliation was again broached by the attorney to his client. She rejected it and directed the attorney to proceed with the divorce proceedings.
The husband upon being served with process retained independent counsel and now complains that because of the conferences with the attorney and the latter's acceptance of a $25 conference fee, the attorney is disqualified from representing the wife because of an alleged inherent conflict of interests. The attorney returned the $25 fee to the husband.
The question posed is whether, in this case, it is unethical for the attorney to continue to represent the wife in the divorce action.
On the facts as presented we are of the opinion that the attorney may continue to represent the wife. To hold otherwise would have two undesirable effects: (1) it would tend to discourage members of the bar from fulfilling the public policy that attorneys should make every reasonable effort to effect reconciliations in matrimonial cases, American Bar Association, Committee on Professional Ethics, Opinion 58 (1931); and (2) it would enable a disgruntled party to a reconciliation conference to unjustifiedly disqualify the opposing party's counsel and, in the present case, deprive the wife of the benefit of her own attorney's familiarity with her cause and his talents as her advocate.
The facts in this case are distinguishable from those presented in our Opinion 86, 88 N.J.L.J. 733 (1965), where the attorney after being consulted by the wife who did not retain him, was consulted by the husband who sought to retain him. Having received confidential communications from the wife with a view of
possibly being her advocate, an attorney cannot become the attorney of the husband in litigation between them.
The facts here clearly distinguish this inquiry from the case of In re Braun, 49 N.J. 16 (1967), where the attorney involved saw both parties together at the time of the first conference, and thereafter, when both parties had engaged other counsel and a suit had been instituted by the wife, the attorney again was consulted by the husband. He discussed with the husband the pending divorce suit, examined the pleadings, and was requested by the husband to
take over the suit and represent him. The attorney charged the husband a conference fee but apparently did nothing further because a few days after that conference the attorney was visited by the wife and agreed to represent her in the divorce suit, going so far as to secure a substitution of attorney on her behalf. When the husband protested this, the attorney withdrew as the wife's counsel. The Supreme Court found this conduct to warrant reprimand under Canons 6 and 37. But, in the present case, we do not have such improper conduct because counsel for the wife, at all times, made it clear to the husband that he was representing only the wife.
While it is our view that counsel in the pending inquiry should not have accepted the conference fee from the husband - a fee which he returned as above noted - we do not consider that his conduct in this case was improper.