Can one attorney represent both defendants accused of adultery in two separate divorce suits arising from the same conduct, where each defendant consents?

Plain-English summary

An attorney represented the defendant-husband in a divorce suit based on adultery. The husband of the co-respondent had also filed for divorce, based on the adultery of the co-respondent. The question was whether the attorney could represent the defendants in both actions.

The Committee assumed for purposes of the opinion that the adultery complained of in each suit involved the same dates, places, and circumstances, and that each defendant gave the full and unequivocal consent of the other to share the same attorney. Under those circumstances, the Committee found no impropriety. It reasoned that the testimony of each defendant was essential to the other, that there was no conflict of interest that would prevent the attorney from giving his best efforts and skill to each client, and that the defendants had a common interest in presenting the facts, with the outcome affecting each party in the same manner.

Currency note

This opinion was issued in July 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 addressed common representation of co-parties, now governed by RPC 1.7 (concurrent conflicts and informed-consent requirements). Treat this page as historical context, not current guidance.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 one attorney represent both adultery defendants in the two divorce suits?

A: Yes, on the assumed facts. The Committee found no impropriety where the adultery involved the same dates, places, and circumstances and each defendant fully and unequivocally consented.

Q: Why was there no conflict of interest?

A: The Committee reasoned the defendants had a common interest in presenting the facts, the testimony of each was essential to the other, and the outcome would affect each in the same manner.

Q: What conditions did the Committee assume?

A: It assumed identical underlying facts in both suits and the full, unequivocal consent of each defendant to share the same attorney; the opinion rested on those assumptions.

Background and rules framework

The opinion addressed common representation of co-defendants under the former Canons of Professional Ethics, finding the interests aligned and consent given. The same question today is analyzed under RPC 1.7, which permits joint representation of clients with consistent interests where each gives informed consent and the lawyer reasonably believes the representation will not be adversely affected.

Citations and references

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

• Canons of Professional Ethics (conflicting interests; common representation)

See also

• NJ ACPE Op. 156: Representing Both Driver and Passenger
• NJ ACPE Op. 126: Legal Aid Society Representing Multiple Defendants
• NJ ACPE Op. 163: Conferences With Both Spouses in a Divorce Action

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp47-1.html

Original opinion text

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

87 N.J.L.J. 449
July 16, 1964

OPINION 47

Conflict of Interest - Divorce Actions

An attorney represents the defendant-husband in a divorce suit based on adultery. The husband of the co-respondent has likewise filed suit for divorce, based on the adultery of the co-respondent. Would it be improper for the attorney to represent the defendants in both actions?

For the purpose of this opinion, it is assumed that the adultery, of which complaint is made in each suit, involves the same dates, places and circumstances and that each defendant has the full and unequivocal consent of the other to have the same attorney represent each of them.

Under these circumstances, there appears to be no impropriety for the attorney to represent both defendants. It would seem that the testimony of each defendant is essential to the other defendant and that there is no conflict of interest which would in any way prevent the attorney from giving his best efforts and skill to each client. The defendants have a common interest in presenting the facts of the case and the outcome must affect each party in the same manner.