May a lawyer represent a husband in a divorce when the wife once made unsolicited calls to him that did not seek his services or concern the divorce?

Plain-English summary

An attorney represented a client on a personal injury claim. In handling it he met the client's wife several times and once received a phone call from her complaining of her husband's conduct and saying they were living apart; she did not seek advice or ask him to represent her, and he promptly told his client about the call. He later learned the wife had retained independent counsel, with whom he had a brief conversation; an apparent reconciliation followed. After the spouses separated again, the wife telephoned to ask the attorney to request her husband to deliver certain personal property to her, and he declined. About two months later the husband was served with a support complaint by the wife; the attorney appeared for the husband and the matter was adjusted without a hearing. The husband now wanted the attorney to represent him in a divorce based on the wife's recent adultery, and the attorney asked whether (especially in light of the Committee's Opinion 86) he was free to act for the husband.

The Committee held that he was at liberty to undertake the representation. The wife's earlier calls were entirely unsolicited and apparently unconnected with the subject matter of the proposed divorce; she did not seek to retain his services or indicate she might. The Committee distinguished its Opinion 86, where the attorney could not represent the husband because the wife had earlier consulted him about her marital problems (the bar applying even though she had not retained him, no notes were taken, and no retainer was paid). For Canon 6 to apply in this kind of situation, the Committee said, there must have been an earlier attorney-client relationship, or a communication made with the expectation that such a relationship might ensue; an entirely unsolicited conversation foreshadowing no immediate or future attorney-client relationship does not evoke the canon's sanctions.

The Committee added that Canon 37 was likewise irrelevant, because there were no confidential communications incident to an existing or prospective attorney-client relationship, and information not acquired by an attorney in confidence may be freely divulged.

Currency note

This opinion was issued in January 1966, 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), distinguishing a true prospective-client consultation from an unsolicited contact. These subjects are now treated under RPC 1.18 (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: Can a lawyer represent a husband whose wife once called him unsolicited?

A: Under this opinion, yes. The Committee held the attorney was at liberty to represent the husband because the wife's calls were unsolicited, sought no services, and did not concern the divorce.

Q: How is this different from Opinion 86?

A: In Opinion 86 the wife actually consulted the attorney about her marital problems, creating a prospective-client relationship; here the wife's contacts were unsolicited and foreshadowed no attorney-client relationship, so Canon 6 did not apply.

Q: What is required before the conflict bar attaches?

A: The Committee said there must have been an earlier attorney-client relationship, or a communication made with the expectation that such a relationship might ensue.

Background and rules framework

The opinion applies Canon 6 (conflicting interests) and Canon 37 (confidences), drawing the line for a prospective-client conflict at whether an attorney-client relationship existed or was reasonably expected. In current New Jersey terms, the prospective-client analysis maps to RPC 1.18, the successive-representation question to RPC 1.9, and confidentiality to RPC 1.6.

Citations and references

Other authorities:

• Canons of Professional Ethics, Canon 6 (conflicting interests) and Canon 37 (confidences)
• A.B.A. Comm. on Professional Ethics and Grievances, Opinion 154 (1936): information not acquired in confidence may be freely divulged

Other opinions cited:

• NJ ACPE Opinion 86, 88 N.J.L.J. 773 (1965): distinguished; bar applies where the spouse actually consulted the attorney

See also

• NJ ACPE Op. 86: Consulted by One Spouse, Then Asked to Represent the Other
• 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/acp89-1.html

Original opinion text

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

89 N.J.L.J. 56
January 27, 1966

OPINION 89

Confidential Communications
Husband-Wife Clients

An attorney was engaged to represent a client with respect to a personal injury claim. In handling the matter he met his client's wife several times and upon one occasion received a telephone call from her, complaining of her husband's conduct and stating that he and she were now living apart. She did not seek advice from the attorney nor ask him to retain his services. The attorney promptly advised his client of the telephone call. A few days later the attorney learned that his client's wife had retained independent counsel with whom he, the attorney, had a brief conversation. An apparent reconciliation between husband and wife followed. Some time later, husband and wife having again separated, the latter telephoned the attorney to ask if he would request her husband to deliver certain articles of personal property to her. The attorney declined to make the request. About two months later the husband was served with a complaint for support in an action instituted by his wife. The attorney appeared on behalf of the husband and the matter was adjusted without a hearing. The husband now requests the attorney to represent him in a proposed action for divorce based upon recent adultery on the part of the wife. The attorney asks whether, especially in the light of N.J. Advisory Committee on Professional Ethics, Opinion 86, 88 N.J.L.J. 773 (1965), he is at liberty to act for the husband in the manner suggested.

It is the opinion of the Committee that he is at liberty to undertake this representation. The earlier telephone calls received from his client's wife were entirely unsolicited and furthermore apparently were in no way concerned with the subject matter of the presently proposed litigation. She did not seek to retain his services nor did she indicate that she might wish to do so in the future. In Opinion 86, supra, the situation was entirely different. There we determined that an attorney might not represent a husband in a divorce action where the wife had earlier consulted the same attorney with respect to her marital problems. The decision was reached despite the fact that she had not retained the attorney, he had taken no notes and no retainer was paid. We cited Canon 6. In order, however, for this canon to apply in a situation of this sort, there must have been an earlier attorney-client relationship or a communication must have been made with the expectation that such a relationship might ensue. An entirely unsolicited conversation foreshadowing in no way an immediate or future attorney-client relationship cannot be taken as evoking the sanctions of this canon.

Canon 37, to which reference is also made in Opinion 86, is likewise irrelevant. In the case we are considering there were no confidential communications incident to an existing or prospective attorney-client relationship. Furthermore, information not acquired by an attorney in confidence may be freely divulged. A.B.A. Comm. on Professional Ethics and Grievances, Opinion 154 (1936).