May a firm represent a husband in a divorce when it previously represented the wife and the couple together in personal injury and business matters, and the wife objects?

Plain-English summary

The question was whether a law firm could represent a husband in a divorce when it had represented the wife in a personal injury action years earlier, had represented the husband and wife together in many business and personal matters over the years, and had represented the husband alone in several business matters. Marital difficulties had arisen, the wife was suing for divorce, and she objected to the firm representing the husband without stating her reasons; the firm said it knew of no confidences from its prior relationship with the wife that would preclude it.

The Committee noted that under current practice the division of certain marital assets is subject to the courts' determination in matrimonial proceedings, citing N.J.S. 2A:34-23. The firm relied on Opinions 154, 216, and 249, but the Committee directed the inquirer to Opinions 86 and 26, which it found more closely resembled these facts and which had their origin in former Canon 6 (now DR 5-105). In both of those opinions the Committee had held the attorney precluded from representing the husband, and it took the same position here, also referring the inquirer to Opinions 6 and 97. It concluded that a careful reading of those opinions led to the obvious conclusion that the firm should not represent the husband in this proceeding.

Currency note

This opinion was issued in 1973, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. It rested on former Canon 6 (now DR 5-105) and the duty to former clients; current analysis would proceed under RPC 1.7 and RPC 1.9. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a firm represent one spouse in a divorce after representing both?

A: Under this opinion, no, on these facts; the Committee held the firm should not represent the husband after representing the wife and the couple together.

Q: Did the firm's lack of specific confidences allow it to proceed?

A: No. Even though the firm said it knew of no confidences that would preclude it, the Committee followed earlier opinions precluding the representation.

Q: Did the wife have to explain her objection?

A: The opinion notes she gave no reason and did not respond to a request for the facts or confidences behind her objection, yet maintained it; the Committee still concluded the firm should not represent the husband.

Background and rules framework

The opinion applied former Canon 6 (now DR 5-105) and the duty to former clients to a firm's proposed adverse representation of one of two former joint clients. In current New Jersey terms, these map to RPC 1.7 (concurrent conflicts) and RPC 1.9 (duties to former clients).

Citations and references

Rules of Professional Conduct:

• Former Canon 6 / DR 5-105 and the duty to former clients, as in effect 1973; now MR 1.7 / NJ RPC 1.7 and MR 1.9 / NJ RPC 1.9

Statutes:

• N.J.S. 2A:34-23 (1971) (distribution of marital assets)

Other opinions cited:

• NJ ACPE Opinion 6, 86 N.J.L.J. 718 (1963); Opinion 26, 87 N.J.L.J. 19 (1964); Opinion 86, 88 N.J.L.J. 773 (1965); Opinion 97, 89 N.J.L.J. 507 (1966); Opinion 154, 92 N.J.L.J. 353 (1969); Opinion 216, 94 N.J.L.J. 677 (1971); Opinion 249, 96 N.J.L.J. 221 (1973)

See also

• NJ ACPE Op. 282: Suing the Spouse of a Current Client in an Unrelated Case
• NJ ACPE Op. 288: A Deputy Attorney General's Spouse Practicing Criminal Defense

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp275-1.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.

96 N.J.L.J. 1458, December 20, 1973

OPINION 275

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.