Could a lawyer who represented a husband in a custody dispute later defend the wife against a charge of killing him?

Plain-English summary

The husband had hired the lawyer to prepare a dissolution and child-custody petition, although the petition was never filed. Acting on the lawyer's advice, the husband took the children from their maternal grandparents. The wife later went to the husband's home, where he was fatally shot, and asked the same lawyer to defend her against manslaughter.

The committee found that the criminal case arose from the exact custody issue on which the lawyer had represented the husband. A complete defense could involve the husband's state of mind, attitude, and intentions, making the lawyer a possible witness.

The duty to preserve the husband's confidences did not end with his death. The committee also found an obvious appearance problem whether the wife was convicted or acquitted and concluded that the lawyer had to decline the defense after appearing at the bond hearing.

Currency note

This opinion was issued in 1973, before Nebraska's adoption of the 2005 Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement.

Common questions

Q: Did it matter that the dissolution petition was never filed?

A: No. The lawyer had been hired, paid, and had advised the husband about taking custody of the children.

Q: Did the husband's death end the confidentiality duty?

A: No. The opinion expressly stated that the duty regarding his confidences survived death.

Q: Why might the lawyer become a witness?

A: The defense could place the husband's state of mind, attitude, and possible intentions concerning custody at issue.

Q: Had the lawyer already acted for the wife?

A: The lawyer represented her at the bond setting before asking whether the felony defense could continue.

Background and rules framework

The opinion applied former DR 4-101(B) and EC 4-6 to the deceased client's confidences, DR 5-101(B) to the lawyer's possible testimony, DR 5-105(B) to impaired professional judgment, and EC 9-6 to the appearance of impropriety.

Citations and references

Former Nebraska Code of Professional Responsibility:

• DR 4-101(B) and EC 4-6
• DR 5-101(B)
• DR 5-105(B)
• EC 9-6

See also

• Nebraska Ethics Op. 94-4: Lateral staff conflicts
• Nebraska Ethics Op. 74-9: Estate lawyer as witness
• Nebraska Ethics Op. 93-6: Lawyer-witness and own firm

Source

• Landing page: Nebraska lawyer ethics opinions archive
• Original PDF: Nebraska Ethics Advisory Opinion 73-15

Original opinion text

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

Nebraska Ethics Advisory Opinion for Lawyers No. 73-15

A LAWYER WHO HAS REPRESENTED A HUSBAND IN CONNECTION WITH HIS ATTEMPT TO SECURE A DISSOLUTION OF HIS MARRIAGE AND CUSTODY OF HIS CHILDREN IS DISQUALIFIED TO DEFEND THE WIFE AGAINST A CHARGE OF MANSLAUGHTER, WHEREIN IT IS CLAIMED THAT SHE KILLED HER HUSBAND IN AN ATTEMPT TO REGAIN CUSTODY OF THE CHILDREN FROM THE HUSBAND.

CODE AND DISCIPLINARY RULES APPLICABLE

DR 4-101(B) A lawyer shall not knowlingly:

(1) Reveal a confidence or a secret of his client.

EC 4-6: The obligation of a lawyer to preserve the confidences and secrets of his client continues after the termination of his employment.

DR 5-101(B): A lawyer shall not accept employment... if he knows or is obvious that he or a lawyer in his firm ought to be called as a witness ....

DR 5-105(B): A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client ....

EC 9-6: Every lawyer owes a solemn duty to uphold the integrity and honor of his profession...to strive to avoid not only professional impropriety but also the appearance of impropriety.

DISCUSSION

The inquirer was hired and paid by a husband to prepare a petition for dissolution of the marriage and for custody of the children. The petition was never filed. The wife had left the children in the informal custody of her parents, and the attorney advised the husband that the grandparents had no right to deprive him of the children. Accordingly, the husband went to the grandparents' home and took custody of the children; whereupon, the wife visited the husband's home and he was killed by gunshot, allegedly inflicted by the wife. Subsequently, the wife asked the same attorney to defend her in the manslaughter case. The attorney represented the wife at the bond setting but now inquires whether he may defend her against the felony charge. It is clear that the felony charge arose out of the exact issue concerning which the attorney was representing the husband. A total defense of the wife might well inquire into the husband's attitude and state of mind, and might involve the attorney as a witness on many points including the deceased's state of mind, attitude, possible intention to commit some illegal act in connection with the custody issue, etc. At any rate, the lawyer's duties to the husband regarding confidences did not terminate upon death of the client-husband. The appearance of impropriety is obvious. If the wife is convicted, both the public and she might claim that her fate was sealed because the attorney really represented the deceased husband. If the wife is acquitted, both the public and she might feel that her acquittal was at least partly the result of some confidential or inside information which the attorney had acquired from the husband. On the grounds of appearances alone, the attorney should decline the tendered employment by the wife.

Nebraska Ethics Advisory Opinion for Lawyers No. 73-15