Must a divorce lawyer disclose to the court that his client committed adultery, an affirmative defense, or keep it confidential?

Plain-English summary

The Committee addressed two similar inquiries. In one, a county legal-services staff attorney learned while interviewing Mrs. A (seeking a divorce for desertion) that she had committed adultery and that two of her children were fathered by another man. In the other, Mr. A asked counsel to file a meritorious desertion suit while disclosing that, since his wife left, he had been living with another woman and had a child by her. The question was whether the lawyer's duties of candor and fairness (Canon 22), his duty not to participate in a fraud on the court (Canons 15 and 41), and his duty to uphold the honor of the profession (Canon 29) required disclosure of the adultery, or whether his duty to preserve confidences (Canon 37) forbade it.

Drawing on its Opinion 116 (tracing Canon 37) and ABA authority, the Committee surveyed opinions concluding that a divorce plaintiff's attorney is not obligated to advise the court of the client's adultery: ABA Informal Opinion 869, the New York City and New York County opinions following Thompson v. Thompson, and Drinker's statement that the lawyer owes no duty to the State to disclose independent defenses to a divorce action. It also examined ABA Opinions 268 and 287 on a client's prior perjury, where the ABA concluded that, even though Canons 29 and 41 might appear to require disclosure, Canon 37 controls and the lawyer should urge the client to disclose but, if he refuses, the lawyer should withdraw rather than reveal the facts.

The Committee then noted C. v. C., in which the New Jersey Supreme Court held that a trial court should not, on its own motion, raise the recriminatory defense in an uncontested divorce case absent extraordinary circumstances, and observed that recent developments had placed the recrimination defense in a different perspective and diminished the State's interest. It concluded that, on the facts stated, the lawyer's duty is to preserve the client's confidences and not disclose to the court facts amounting to an affirmative defense, while pointing out to the client that she must answer truthfully if appropriate questions are put to her, unless she declines on constitutional grounds. The Committee distinguished In re Backes, where the fraud was so patent as to cloud the recrimination issue.

Currency note

This opinion was issued in December 1969, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), so the Committee was applying the Canons of Professional Ethics (Canons 15, 22, 29, 37, 41). It also predates the 1984 Rules of Professional Conduct and all later revisions, and the substantive divorce-recrimination law it relied on has since changed substantially. The confidentiality and candor questions it weighed are now governed by RPC 1.6 and RPC 3.3, which strike the balance differently in some respects. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Must a divorce lawyer tell the court that the client committed adultery?

A: Not under this opinion. The Committee held the duty to preserve confidences (Canon 37) controlled, so the lawyer must not disclose facts amounting to an affirmative defense like the client's adultery.

Q: What must the lawyer tell the client about answering questions under oath?

A: The Committee held the lawyer must advise the client that if appropriate questions are addressed to her she must answer truthfully, unless she declines to answer on constitutional grounds.

Q: Why didn't the duty of candor or the fraud-on-the-court canons require disclosure?

A: The Committee, following ABA authority, concluded that Canons 22, 29, and 41 were not sufficient to override Canon 37 on these facts, and that the recrimination defense had been placed in a different perspective by C. v. C., diminishing the State's interest.

Background and rules framework

The opinion balanced Canon 37 (confidences) against Canons 22 (candor), 15 and 41 (fraud on the court), and 29 (honor of the profession), against the backdrop of New Jersey divorce law and the recrimination defense as reframed in C. v. C. In current New Jersey terms, the duty of confidentiality is governed by RPC 1.6 and the duty of candor to a tribunal by RPC 3.3.

Citations and references

Cases:

• C. v. C., 54 N.J. 223 (1969)
• In re Backes, 16 N.J. 430 (1954)
• Thompson v. Thompson, 127 App. Div. 296 (N.Y. App. Div. 1908)

Other authorities:

• Canons of Professional Ethics, Canons 15, 22, 29, 37, 41
• Drinker, Legal Ethics 124, 133 (1963)
• ABA Committee on Professional Ethics, Informal Opinion 869 (1965); Opinions 268 (1945) and 287 (1953)
• Assn. of the Bar, City of N.Y., Opinion 558 (1940); N.Y. County Lawyers Assn., Opinion 365 (1941)
• NJ ACPE Opinion 116, 90 N.J.L.J. 688 (1967)

See also

• NJ ACPE Op. 535: Confidentiality and a Fraudulent Insurance Claim
• NJ ACPE Op. 585: Disclosure of Insurance Fraud
• NJ ACPE Op. 664: Disclosure of a Corporate Client Employee's Report of Alleged Illegal Activities

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp163-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

92 N.J.L.J. 825, December 18, 1969

OPINION 163

Conferences of Client Divorce Action

FACTS

An attorney inquiries as follows:

Mrs. A has applied through one of the county legal service organizations for representation in obtaining a divorce from her husband on the ground that he had deserted her in 1962. While interviewing Mrs. A, a staff attorney learned that she had committed adultery and that two of her six children were fathered by a man other than her husband, after her husband left. Adultery by a party seeking a divorce is likely to bar him or her from obtaining a divorce if this should become known to the court.

Another inquiry is as follows:

Mr. A requests the attorney to file a suit for divorce on the ground of desertion, which the attorney believes to be meritorious. Mr. A also advises the attorney that since the desertion of his wife, he has been living with another woman and, in fact, has had a child with this woman.

QUESTIONS

In each case, do the attorney's duties of candor and fairness (Canons of Professional Ethics, Canon 22), his duty not to participate in a fraud upon the court (Canons 15 and 41), and his duty to uphold the honor of his profession (Canon 29), require that he disclose the fact of adultery, or is he required not to reveal the adultery because of his duty to preserve his client's confidences (Canon 37)? If suit is instituted, must the attorney affirmatively disclose to the court, either in the complaint or at the hearing, that his client is living with another woman and has had a child by this woman? Because of the similarity of the facts of these cases, our opinion will dispose of both questions.

The basic principles upon which this opinion is based are stated in our Opinion 116, 90 N.J.L.J. 688 (1967), wherein we traced the origin and rationale of Canon 37 and concluded that when a defendant admitted to his attorney he was guilty of a criminal charge and was advised not to take the stand, but, nevertheless insisted on testifying, taking the stand and denying the charge, counsel had no right to mention the conflict between the client's statement and his sworn testimony, or to withdraw from the case.

With reference to the facts of the cases now before us, the American Bar Association, Committee on Professional Ethics, in a similar situation, by its Informal Opinion 869 (1965), held that the attorney for a plaintiff in a divorce action is not obligated nor ethically bound to advise the Court of his client's admission that she has become pregnant by a man other than her husband; he should advise the client that such adultery constitutes a defense if raised by the other party and that she must be truthful if questioned under oath or assert her constitutional right not to incriminate herself. The Committee mentioned that two ethics opinions from New York are to the same effect. The first is Assn. of the Bar, City of N.Y., Committee on Professional Ethics, Opinion 558 (1940). In that inquiry, the Legal Aid Society asked whether it was proper for the society to accept employment from a client who was seeking to obtain a divorce, where the society knew that the client had also committed adultery. The Committee ruled that the society could handle the case, citing Thompson v. Thompson, 127 App. Div. 296 (N.Y. App. Div. 1908), with the proposition that there would be no duty to disclose the adultery. The second is N.Y. County Lawyers Assn., Committee on Professional Ethics, Opinion 365 (1941), which was concerned with the same issue as in Opinion 558 above and reached the same result, based upon the Thompson case.

Commenting upon these opinions and the Thompson case, Drinker, Legal Ethics 124 (1963), states: "It would seem to follow that the lawyer owes no duty to the State to disclose independent defenses to a divorce action."

At page 133, Mr. Drinker refers to Ethics in Service by W. H. Taft (1915), wherein Judge Taft said:

To require the counsel to disclose the confidential communications of his client to the very court and jury which are to pass on the issue which he is making, would end forever the possibility of any useful relation between lawyer and client.

In A.B.A. Comm. on Professional Ethics and Grievances, Opinion 268 (1945), the facts were as follows:

X consulted attorney A about procuring a divorce for him and told A he had not resided in the State the time required by the statute before he could legally file suit. X paid a consultation fee and went to attorney B where he made a false statement about his residence to B. B filed suit for X and a few days thereafter A learned of the filing of suit by B. Was A, by any Canon of Ethics, relationship of attorney and client, or otherwise, prevented from telling the court, B, or anyone else, the facts related to him by X concerning X's residence?

The Committee said:

Canon 37 of the Association, entitled "Confidences of a Client" provides, in part, [i]t is the duty of a lawyer to preserve his client's confidences. This duty outlasts the lawyer's employment,.... ." Canon 29, entitled "Upholding the Honor of the Profession" provides, in part, "[t]he counsel upon the trial of a cause in which perjury has been committed owe it to the profession and to the public to bring the matter to the knowledge of the prosecuting authorities.

Opinion 287 (1953) the situation was as follows:

An attorney represents a client in a suit for divorce and a decree for divorce from bonds of matrimony is duly entered by the Court on November 6, 1952, in favor of the client on the grounds of willful desertion and abandonment by his wife as of March 15, 1950. The wife was represented by counsel in the divorce action and she was fully apprised of the evidence presented on behalf of her husband. Three months after entry of the decree the client again comes to the attorney seeking advice by reason of the following situation: The client tells the attorney that he, the client, gave false testimony at the taking of the deposition upon which his decree for divorce was based; that the date of desertion was not March 15, 1950, as he had testified, but was actually the early part of November 1951 (which, under the local law, would have made the action premature); that his former wife threatens to disclose the true facts to the court unless support money is forthcoming. The client has not remarried, nor has his former wife.

What is the duty of the attorney to the court, as an officer of the court, after learning that the testimony of his client in the suit for divorce was false? What is the duty of the attorney to his client, who, when seeking advice, disclosed the fact that he had testified falsely in the suit for divorce?

The American Bar Committee said:

The crime of perjury has already been committed; the question is not one of preventing the commission of the crime, and the wife, being at least a tacit party to the fraud on the court, requires no protection. In the case submitted to us, the communication by the client to the lawyer that he had committed perjury was made to the lawyer in his professional capacity, when seeking advice as to what to do, and is within the letter and the spirit of Canon 37, which would apply unless controlled by some other Canon or consideration.

Canon 41 provides as follows:

When a lawyer discovers that some fraud or deception has been practiced, which has unjustly imposed upon the court or a party, he should endeavor to rectify it; at first by advising his client, and if his client refuses to forego the advantage thus unjustly gained, he should promptly inform the injured person or his counsel so that they may take appropriate steps.

We do not believe that Canon 41 was directed at a case such as that here presented but rather at one in which, in a civil suit, the lawyer's client has secured an improper advantage over the other through fraud or deception.

Nor do we not think that because the state is considered an interested party to proceedings to sever the matrimonial relation of its citizens the state or the court may therefore be treated as an "injured person" within the meaning of Canon 41.

The counsel upon the trial of a cause in which perjury has been committed owe it to the profession and to the public to bring the matter to the knowledge of the prosecuting authorities. On its face this provision would apparently make it the duty of the lawyer to disclose his client's prior perjury to the prosecuting authorities. However, to do so in this case would involve the direct violation of Canon 37.

Accordingly, it is essential to determine which of the Canons controls. Neither Canon 41 nor Canon 29 specifically requires the lawyer to advise the court of his client's perjury, even where this was committed in a case in which the lawyer was acting as counsel and an officer of the court. We do not consider that either the duty of candor and fairness to the court, as stated in Canon 22, or the provisions of Canons 29 and 41 above quoted are sufficient to override the purpose, policy and express obligation under Canon 37.

In the case stated the lawyer should urge his client to make the disclosure, advising him that this is essential to secure for him any leniency in the event of the court's finding out the truth. He should also advise him to tell his wife that he proposes to do so, and thus void further blackmail. If the client will not take this advice, the lawyer should have nothing further to do with him, but despite Canons 29 and 41, should not disclose the facts to the court or to the authorities. Compare also Opinion 268.

In C. v. C., 54 N.J. 223 (1969), the court dealt with the following facts:

There was an uncontested divorce action stemming from defendant's alleged desertion of plaintiff in 1963. The trial judge was satisfied that defendant's desertion was established, but nevertheless, denied the divorce, holding that plaintiff's adultery in 1966 operated to bar her divorce under the doctrine of recrimination. Appeal followed.

In reversing the lower court, Justice Schettino said:

Since Wells, courts have occasionally declined to raise recrimination as a bar to a divorce in an uncontested case. e.g, X v. Y., 103 N.J. Super. 218 (Ch. Div. 1968); cf. B. v. S., 99 N.J. Super. 429 (Ch. Div. 1968). As was demonstrated by the trial court here, however, the practice has not been universal. Today, we hold that in an uncontested case, absent extraordinary circumstances, a trial court should not on its own motion raise a recriminatory defense. We qualify this holding only because it is not possible to foresee all situations which might arise. We emphasize, however, that the facts would have to be most extraordinary to justify departure from the basic rule that recrimination should not be raised sua sponte in an uncontested case.

We leave open, however, the question which might arise in an uncontested case where a recriminatory act is suggested by the evidence, but where the facts indicate that the issue of the wife's support should not be foreclosed. In such a case it might not be unreasonable for the trial court, on its own motion, to condition relief in terms appropriate to protect the wife's interest. We also leave open the role of recrimination in a contested case.

CONCLUSION

We are not unmindful of the problems which are raised by other Canons, such as 15, 22, 29 and 41, but based upon the facts stated, and since the defense of recrimination in divorce proceedings has been placed in a different perspective by recent developments in the law, C. v. C., supra, we are of the opinion that it is the duty of the lawyer to preserve his client's confidences and to do so, he must not disclose to the court facts which amount to an affirmative defense in the divorce action. He must point out to his client that if appropriate questions are addressed to her, she must be truthful and answer them, unless she declines to answer them on constitutional grounds.

But see In re Backes, 16 N.J. 430 (1954), in which fraud was so patent as to cloud the issue of recrimination. While it was there stated that the State is in fact, if not in name, a third party having a substantial interest in every divorce, it would now appear by the ruling in C. v. C., supra, that by the time there is a litigated divorce case, there is little chance to restore life to what has become a dead and empty shell of its former being, and while the shell may be preserved, the family as a sociological unit is not. Hence the interest of the State is substantially diminished.