Can a lawyer who counseled a husband and his second wife about their failing marriage later represent the wife in a divorce against the husband?

Plain-English summary

An attorney had successfully prosecuted a divorce for a husband and done other legal work for him, including representing the husband and his second wife in buying a home and consulting with both of them about the matrimonial difficulties they were experiencing. He asked whether he could now represent the second wife in a divorce action she contemplated against the husband, noting the husband probably would not contest it.

The Committee answered that to state the question is to suggest the answer: the attorney may not represent the second wife. Under Canon 6, an attorney is precluded from representing conflicting interests and from later accepting employment from others in matters adversely affecting an interest of the client as to which confidence has been reposed. Because the attorney had spoken with both spouses on a number of occasions trying to resolve their difficulties and preserve the marriage, the Committee reasoned he may have secured confidences from the husband that could adversely affect the husband in the proposed suit, and that whether the husband contests the action is immaterial.

The Committee added that Canon 37 imposes a strict duty to preserve client confidences that extends beyond employment and bars using them to the client's disadvantage. It noted, parenthetically, that the attorney would also be precluded from representing the husband once the second wife secured other counsel.

Currency note

This opinion was issued in January 1964, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), and well before the 1984 Rules of Professional Conduct and all later revisions. It applied Canons 6 and 37 of the former Canons of Professional Ethics; duties to former clients and confidentiality are now governed by RPC 1.9 and RPC 1.6. Treat this page as historical context, not current guidance.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: Could the lawyer represent the second wife in divorcing the husband?

A: No. The Committee held the attorney may not represent the second wife, because he had likely received the husband's confidences while counseling the couple and prosecuting the husband's prior divorce.

Q: Did it matter that the husband probably would not contest the divorce?

A: No. The Committee said whether the husband contests the action is immaterial to the conflict.

Q: Could the lawyer instead represent the husband?

A: No. The Committee noted parenthetically that he would also be precluded from representing the husband once the second wife secured other counsel.

Background and rules framework

The opinion applied Canons 6 and 37 of the former Canons of Professional Ethics, focused on conflicting interests and the enduring duty to preserve a client's confidences. Because the lawyer had counseled both spouses while trying to save the marriage, he could not take a position adverse to the husband. The subjects are now governed by RPC 1.9 and RPC 1.6.

Citations and references

Rules of Professional Conduct (as in effect at the time):

• Canon of Professional Ethics 6 (adverse influences and conflicting interests)
• Canon of Professional Ethics 37 (confidences of a client)

Other opinions cited:

• Drinker, Legal Ethics 111-112 (1953); ABA Opinions on Canons 6 and 37 (1957 ed.)

See also

• NJ ACPE Op. 57: Opposing the Kin of a Deceased Former Client
• NJ ACPE Op. 131: Husband-Wife Reconciliation Conference
• NJ ACPE Op. 158: Suing a Former Client

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp26-1.html

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

87 N.J.L.J. 19
January 9, 1964

OPINION 26

Conflict of Interest
Husband-Wife

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.