If a wife consults a lawyer about her marital problems but does not retain him, may that lawyer later represent the husband in a divorce?

Plain-English summary

A wife consulted an attorney about her marital problems but did not retain him; no notes were taken and no retainer was paid (the Committee also considered the variant where a consultation fee is paid). Some time later, the husband consulted the same attorney about obtaining a divorce. The questions were whether there was a conflict of interest and whether the attorney was prevented from representing the husband.

The Committee answered both questions in the affirmative. Canon 6 precludes an attorney from representing conflicting interests and forbids disclosing secrets or confidences or subsequently accepting employment from others in matters adversely affecting an interest of the client about which confidence had been reposed. The attorney's belief that nothing was improper because he was not retained, made no notes, and received no fee was rejected: if the duty to a prospective client under Canon 6 (avoid conflicting interests) and Canon 37 (preserve confidences) were limited to cases where a retainer was accepted and notes were made, every prospective client would be afraid to consult a lawyer for fear the lawyer might later take the other side, and a lawyer could give himself a free hand by refusing the case.

The Committee invoked In re Blatt, 42 N.J. 522 (1964), in which the Supreme Court, after finding no violation of the specific language of Canons 6 or 37, held that its disciplinary power is not confined to the Canons and stated that a lawyer who represents a litigant should not thereafter represent the opposing party in any step in or arising out of the same cause, because there is always a possibility, however remote, that confidential information from the original client may be used to his detriment.

Currency note

This opinion was issued in December 1965, 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 Canon 6 (conflicting interests) and Canon 37 (confidences) to a prospective-client consultation. These subjects are now treated under RPC 1.18 (duties to prospective clients), RPC 1.9 (former clients), and RPC 1.6 (confidentiality). Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement mentioned here.

Common questions

Q: Does consulting a lawyer without hiring him create a conflict?

A: Under this opinion, yes. The Committee held that once the wife consulted the attorney about her marital problems, he was prevented from later representing the husband, even without a retainer, notes, or fee.

Q: Why didn't the absence of a retainer or fee matter?

A: The Committee reasoned that limiting the duty to retained, paid matters would make every prospective client afraid to consult a lawyer and would let the lawyer give himself a free hand by declining the case.

Q: What authority did the Committee rely on?

A: Canons 6 and 37 and In re Blatt, 42 N.J. 522 (1964), where the Supreme Court said a lawyer should not later represent the opposing party in or arising out of the same cause.

Background and rules framework

The opinion applies Canon 6 (conflicting interests) and Canon 37 (confidences) to the consultation of a prospective client, holding that the duties attach even without a retainer. In current New Jersey terms, the prospective-client duties map to RPC 1.18, the successive-representation conflict to RPC 1.9, and confidentiality to RPC 1.6.

Citations and references

Cases:

• In re Blatt, 42 N.J. 522 (1964): the Court's disciplinary power is not confined to the Canons; a lawyer should not later represent the opposing party in the same cause
• In re Mattera, 34 N.J. 259 (1961): the possibility of confidential information being used to a client's detriment

Other authorities:

• Canons of Professional Ethics, Canon 6 (conflicting interests) and Canon 37 (confidences)

Other opinions cited:

• NJ ACPE Opinion 26, 87 N.J.L.J. 19 (1964)

See also

• NJ ACPE Op. 89: An Unsolicited Call From the Client's Spouse
• NJ ACPE Op. 97: A Divorce Suit Against a Former Criminal Client

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp86-1.html

Original opinion text

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

88 N.J.L.J. 773
December 2, 1965

OPINION 86

Husband-Wife, Clients Confidences

A wife consults an attorney as to her marital problems. She does not retain him as her attorney. No notes are taken and no retainer is paid. Assume same facts, but that a consultation fee is paid.

Some time later, the husband consults the attorney relative to obtaining a divorce. Is there a conflict of interest and is the attorney prevented from representing the husband?

The answer must be in the affirmative to both questions. Canons of Professional Ethics, Canon 6 precludes an attorney from representing conflicting interests, and further forbids the disclosure of secrets or confidences and from subsequently accepting retainers, or employment, from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.

The attorney seems to believe that because he was not retained, made no notes, and received no consultation fee, there would be nothing improper in later representing the other spouse. To this conclusion, we cannot agree. If, after being consulted, the obligation of an attorney to a prospective client under Canon 6, to avoid representing conflicting interests, or under Canon 37, to preserve his client's confidences, were limited to a case in which a retainer was accepted, and notes were made by the lawyer, every prospective client would be afraid to consult a lawyer for fear that he might later take the other side of the controversy.

The lawyer, by refusing to accept the case, for any reason whatsoever, including the inability or refusal of the client to pay the requested retainer, would give himself a "free hand." Such is not the case. Our Supreme Court, In re Blatt, 42 N.J. 522 (1964), said, after finding no violation of the specific language of Canons 6 or 37, that the Court's disciplinary power is not confined to the area covered by the Canons, citing In re Mattera, 34 N.J. 259 (1961).

The Court further said:

It is self-evident that where a member of the bar represents a litigant in a cause, he should not thereafter represent the opposing party in any step in the proceedings in or arising out of the same cause. There is always a possibility, however remote, that confidential information received from the original client may be used to his detriment. Such conduct is plainly and patently unethical and we find respondent guilty of unethical conduct. In re Blatt, 42 N.J. 522, 524 (1964).

To the same general effect, see N.J. Advisory Committee on Professional Ethics, Opinion 26, 87 N.J.L.J. 19 (1964).