95 N.J.L.J. 1265
December 7, 1972
Conflict of Interest
Representing Wife After
Representing Woman Correspondent
We are informed by inquiring Attorney X that in 1970 Mrs. G
instituted suit against her husband who filed a counterclaim. The
nature of the suit is not stated but we assume it sought a divorce
or separate maintenance. Mrs. G, in an amended answer to the
counterclaim, set up a separate defense of recrimination alleging
that her husband had committed adultery with his former wife. The
former wife was notified that she was named as correspondent and
she consulted Attorney X who states in his inquiry the following:
I discussed with her the allegations in the amended answer insofar as they referred to the charge of adultery, which allegations she denied. She advised me that she wanted to retain me to intervene on her behalf and file an answer in the matter. I advised her what our retainer would be and she stated that she would forward the retainer to us.
Pending the receipt of the retainer, I communicated with the plaintiff's attorney advising him that the defendant's former wife, the correspondent, had been in to see me and had retained me for the purpose of intervening, and I inquired of him whether he would consent to an order permitting me to intervene without the necessity of a formal court application. I sent a copy of the letter to... attorney for the defendant....
Subsequently, I received a communication from the plaintiff's attorney stating that he would have no objection thereto. I then received, on November 3, 1970, a phone call from defendant's attorney stating that the amended counterclaim was being withdrawn. I thereupon received a phone call from my client advising me that she did not desire to retain me nor did she want me to do anything further in the matter. I closed out the file and submitted a bill ... for conference and work done . . ., which billing she has refused to pay and has never paid.
In June of this year, Mr. G instituted a suit for divorce against his wife. Mrs. G consulted Attorney X who filed an answer and counterclaim, seeking a divorce on the grounds of desertion. The attorney for Mr. G moved for an order requiring Attorney X to withdraw from the case on the grounds of conflict of interest. The court requested Mr. X to submit the matter for our advisory opinion and stated that a ruling on the motion would be deferred until our opinion was given.
The ethical question involved brings into play DR 4-101 and DR 5-105 of the Disciplinary Rules of the Code of Professional Responsibility of the American Bar Association, as amended, adopted by the Supreme Court of New Jersey on July 7, 1971, effective September 13, 1971. These two Disciplinary Rules deal with the preservation of confidences and secrets of clients and the refusal of employment if the interests of another client may impair the independent professional judgment of a lawyer and encompass the provisions of Canons 6 and 37 of the former Canons of Professional Ethics. A general analysis of the many conflicting interests arising under the provisions of the old Canons 6 and 37 may be found in Drinker, Legal Ethics 104 (1953).
Mr. G's wife #1, the correspondent named in the prior suit in 1970, was the client of Attorney X in that matter and obviously her testimony would have been essential to Mr. G in defending the allegation of adultery if the suit had proceeded to trial. They had a common interest in presenting the facts. The attorney-client relationship was not affected by the withdrawal of the counterclaim, by the statement of Mr. G's former wife that she did not want to retain X and did not want him to do anything further in the matter or by her refusal to pay his bill. Simply stated therefore, the question is - May an attorney ethically change sides in litigation pertaining to the same subject matter?
Although Mr. X did not appear for Mr. G in the prior suit instituted by Mrs. G in 1970, he did represent the correspondent whose position in the suit was equally as adverse to Mrs. G as was the position of her husband. In N.J. Advisory Committee on Professional Ethics, Opinion 47, 87 N.J.L.J. 449 (1964), which concerned the same attorney representing the defendant husband and the named correspondent we said that they "have a common interest in presenting the facts of the case and the outcome must affect each party in the same manner." Attorney X contends that Mr. G's former wife did not reveal to me any confidences of any nature which would affect the plaintiff in this suit, a suit in which the said former wife is nota party and not involved. A full disclosure of the above facts concerning the consultation with me by the said former wife was made to my present client ..., prior to her retaining me. I cannot conceive any manner in which what occurred with Mr. G's former wife would, in any way, affect my exercise of my independent and professional judgment on behalf of my client or adversely affect, in any way, any of my clients. But actual wrongdoing is not the sole reason prompting our decisions in ethical problems. The appearance of evil, though none exists, is sufficient to justify a finding of impropriety. In N.J. Advisory Committee on Professional Ethics, Opinion 97, 89 N.J.L.J. 507 (1966), we said:
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.
The A.B.A. Comm. on Ethics, Informal Opinion 1157 (1970) construed Disciplinary Rule DR 5-105 of the Code of Professional Responsibility and old Canon 6 of the Canons of Professional Ethics. That opinion concerned a lawyer representing a client adverse to a former client in a divorce action. Although it was a question of multiple representation in the same case the sense and thrust of the opinion warned that it is most unwise for an attorney
to represent another side of the litigation after he has once conferred with an adversary in the same matter. The opinion quotes from Drinker, Legal Ethics 109 (1953), and also quotes from the New York County Bar Ass'n, Opinion 202(1922) as follows:
The rendition of professional services by an attorney to one party of a litigation, which thus establishes necessarily a relation of trust and confidence, precludes the acceptance of employment by such attorney in any subsequent phase of the same litigation from the adverse party. ... To maintain public confidence in the bar, it is necessary not only to avoid actual wrongdoing but an appearance of wrongdoing.
In Wise, Legal Ethics 273 (2d ed. 1970) in a summary of a lawyer's duty in the sphere of conflicting interests we find the following:
If there is the slightest doubt as to whether or not the acceptance of professional employment will involve a conflict of interest between two clients or with a former client, or a conflict between the interests of any client and that of the attorney, or may require the use of information obtained through the service of another client, the employment would be refused.
In the case under consideration, Attorney X, in representing wife #1, was in effect representing the interests of Mr. G and was obviously an adversary of wife #2. In the sensitive and emotion charged atmosphere of a divorce proceeding between Mr. G and wife #2, Attorney X cannot possibly foresee the conflicts that might arise in determining the issues. These issues might concern property settlement, support, proof of desertion on the counterclaim, Mr. G's relationship with wife #1 before and after termination of their mamage, the life st yle and financial worth of the parties, etc. In such cases,[says Mr. Drinker,] even though the clients both consent to the assumption of the relation, the lawyer may eventually regret that he did not initially refuse to take the
case. Also, even where all parties agree, the appearance of a lawyer on both sides of the same controversy,... will often given an impression to the public which is most unfortunate for the reputation of the bar, and which of itself should be decisive. Drinker, Legal Ethics 104, 105. (1953).
We are of the opinion that Attorney X should withdraw from the case.