87 N.J.L.J. 19
January 9, 1964
Conflict of Interest
An attorney who successfully prosecuted a divorce suit for a
husband and did other legal work for him, including representing
him and his second wife in the purchase of a home and consulting
with both of them concerning matrimonial difficulties which they
are experiencing, asks whether he may now represent the second wife
in a divorce action which she contemplates bringing against the
husband. The attorney further states that the husband probably will
not contest the action.
To state the question is to suggest the answer, i.e., that the attorney may not represent the second wife.
Canons of Professional Ethics, Canon 6, precludes an attorney from representing conflicting interests and further forbids "the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been exposed." The attorney states that when matrimonial differences arose between the husband and his second wife, he spoke with both of them on a number of occasions in
order to try to resolve the difficulties and preserve the marriage, but came to the conclusion after "much discussion" that the situation was hopeless. Certainly, under these circumstances, counsel may have secured confidences from the husband which might adversely affect the husband in the proposed suit by the second wife for divorce. Whether the husband contests the action or not seems to us to be immaterial.
Canon 37 imposes upon an attorney a strict obligation to preserve his client's confidences, and the duty thus imposed extends beyond the time of his employment. This canon also enjoins a lawyer from using confidences reposed in him to the disadvantage of the client.
See also the discussion on this subject in Drinker, Legal Ethics 111-112 (1953), and the numerous situations discussed in ABA Canons of Professional and Judicial Ethics; Opinions of the Committee on Professional Ethics and Grievances of the American Bar Association (1957), concerning Canons 6 and 37.
It should be said parenthetically that in the present situation this attorney would also be precluded from representing the husband when the second wife secures other counsel.