96 N.J.L.J. 1458
December 20, 1973
Conflict of Interest
Husband-Wife, Clients Confidences
The question here presented is whether a law firm may properly
represent a husband in a divorce case where the firm represented
the wife in a personal injury action a number of years ago,
represented the husband and wife in a number of business and
personal matters over many years and represented the husband alone
in a number of business matters. The inquirer further indicates
that the firm represented the husband in a suit for the return of
a deposit under a contract of sale of real estate in recent years
which was settled, and it also represented the husband in some
commercial litigation within the last few years.
Apparently, marital difficulties have arisen and the wife is now suing the husband for divorce. The husband would like to retain the firm as counsel in the matter and the wife objects. No further statement appears why she objects. The inquirer further states the firm knows of no confidences reposed in the prior relationship with the wife so as to preclude it from representing the husband, and no reply has been received to a request for a specification of the facts or confidences on which the wife bases her objections to the service of the firm as attorneys for her husband. Obviously, and for reasons of her own, she still maintains her objection. We cannot overlook the fact that under our current practice, division of ownership of certain assets of the parties is subject to the ultimate determination by our courts, in matrimonial proceedings. N.J.S. 2A:34-23 (1971).
The firm states that it believes it is proper to represent the husband and wishes to do so, citing in support of its position our Opinion 154, 92 N.J.L.J. 353 (1969), and Opinion 216, 94 N.J.L.J. 677 (1971). In the brief filed by the inquirer, he also says that the logic of our Opinions 154 and 216, supra was elaborated in our recent Opinion 249, 96 N.J.L.J. 221 (1973).
A careful reading of the various opinions which we have rendered would indicate that it requires an examination of other opinions which we have written, which more closely resembles the facts presented in this inquiry and we refer the inquirer to our Opinion 86, 88 N.J.L.J. 773 (1965), which had its origin in former Canon 6 (now DR 5-105) of the Canons of Professional Ethics. In that opinion, we referred to Opinion 26, 87 N.J.L.J. 19 (1964), which is also more related to this inquiry. In both those opinions, we held that in those situations, the attorney would be precluded from representing the husband and we take the same position insofar as this inquiry is concerned. We also refer the inquirer, to our Opinion 6, 86 N.J.L.J. 718 (1963), and Opinion 97, 89 N.J.L.J. 507 (1966). A careful reading of all those opinions would certainly lead to an obvious conclusion that the firm should not represent the husband in this proceeding.