Is a divorce lawyer disqualified from continuing to represent the wife because he held a reconciliation conference with the unrepresented husband and took a small fee?

Plain-English summary

A wife retained an attorney about a possible divorce. Because there was a young child, the attorney recommended a reconciliation conference at his office, attended by both spouses, with the husband choosing not to engage his own counsel. The conference succeeded and the couple reconciled. About fifteen months later, after a recurrence of the alleged cruelty, the wife again retained the same attorney to start a divorce. The husband pressed for another reconciliation conference; the attorney agreed to arrange one only if the husband appeared with his own counsel. The husband refused but insisted on meeting, and the attorney, with the wife's approval, met him and charged a $25 conference fee. During that conference the husband repeatedly voiced doubts about discussing the matter, and the attorney each time urged him to leave and obtain independent counsel; the husband refused. The wife rejected reconciliation and directed the attorney to proceed with the divorce. After being served, the husband retained counsel and argued the attorney was disqualified; the attorney returned the $25 fee.

The Committee concluded the attorney could continue to represent the wife. It reasoned that holding otherwise would discourage members of the bar from fulfilling the public policy that attorneys should make every reasonable effort to effect reconciliations (citing ABA Opinion 58 (1931)), and would let a disgruntled party to a reconciliation conference unjustifiably disqualify the opposing party's counsel and deprive the wife of her own attorney's familiarity with her cause.

The Committee distinguished its Opinion 86, where the attorney had received confidential communications from the wife with a view to possibly being her advocate and therefore could not become the husband's attorney, and In re Braun, where the attorney took a fee from the husband and went so far as to take a substitution of attorney for the wife before withdrawing, conduct the Supreme Court found warranted reprimand under Canons 6 and 37. Here, the Committee said, counsel made clear at all times that he represented only the wife. It added that while counsel should not have accepted the conference fee from the husband, which he returned, his conduct was not improper.

Currency note

This opinion was issued in June 1968, 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 Canons 6 and 37 of the Canons of Professional Ethics; the issues of conflicts and of duties to a person who consults but does not retain a lawyer are now treated under RPC 1.7 and RPC 1.18. 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 meeting with the unrepresented opposing spouse disqualify the lawyer?

A: Not on these facts. The Committee held the lawyer could continue to represent the wife because he repeatedly told the husband to get his own counsel and received no confidences.

Q: Why did the Committee allow it despite the conference?

A: It reasoned that disqualifying counsel would discourage reconciliation efforts the bar should make and would let a disgruntled party knock out the other side's lawyer.

Q: Was taking the $25 conference fee a problem?

A: The Committee said counsel should not have accepted the fee from the husband, but because he returned it and otherwise made his role clear, his conduct was not improper.

Background and rules framework

The opinion turns on whether the lawyer's contact with the unrepresented husband created a disqualifying conflict. The Committee drew the line at confidences: where a lawyer receives confidential communications from a person consulting him as a potential advocate (Opinion 86; In re Braun), he is disqualified from opposing that person, but where he makes clear he represents only one spouse and receives no confidences, he is not. In current New Jersey terms, the analysis combines RPC 1.7 with RPC 1.18 on duties to prospective clients.

Citations and references

Cases:

• In re Braun, 49 N.J. 16 (1967): reprimand under Canons 6 and 37 where the lawyer took a fee from the husband and a substitution for the wife

Other authorities:

• Canons of Professional Ethics, Canons 6 and 37

Other opinions cited:

• NJ ACPE Opinion 86, 88 N.J.L.J. 733 (1965): lawyer who received the wife's confidences cannot become the husband's attorney
• ABA Committee on Professional Ethics, Opinion 58 (1931): attorneys should make every reasonable effort to effect reconciliations

See also

• NJ ACPE Op. 135: Suing an Estate He Previously Represented

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp131-1.html

Original opinion text

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

91 N.J.L.J. 369
June 6, 1968

OPINION 131

Husband-Wife Reconciliation Conference

An attorney inquires whether he may continue to represent a plaintiff wife in a divorce action in this situation.

About a year and a half ago, the attorney's services were retained by the wife concerning a possible divorce. There being a young child of the marriage, the attorney recommended a reconciliation conference at his office which was attended by both parties, the husband attending alone, preferring not to engage his own counsel. The conference was successful; the parties were reunited and lived in harmony for some time. Some 15 months later there was a recurrence of the previously alleged extreme cruelty; the wife again retained the same attorney to start suit for divorce. He was immediately importuned by the husband to hold another reconciliation conference. The attorney advised he would arrange for such a conference if the husband would appear with his own counsel. The husband refused to obtain independent counsel and insisted on seeing the attorney to discuss his wife's conduct and the possibilities of reconciliation. Thereupon, the attorney consented to discuss the matter with the husband at his office for which he charged and received a conference fee of $25 after receiving the client wife's approval of such arrangements.

Despite the previous advice to the husband to retain his own counsel and the husband's insistence on not doing so the husband nevertheless expressed his doubts several times during the conference as to whether he should discuss the matter with the attorney who each time urged him to leave the office and obtain independent counsel. Each time the husband refused and insisted on proceeding with a discussion of the conduct of the parties and their teenage daughter and the possibilities of a reconciliation with his wife. Reconciliation was again broached by the attorney to his client. She rejected it and directed the attorney to proceed with the divorce proceedings.

The husband upon being served with process retained independent counsel and now complains that because of the conferences with the attorney and the latter's acceptance of a $25 conference fee, the attorney is disqualified from representing the wife because of an alleged inherent conflict of interests. The attorney returned the $25 fee to the husband.

The question posed is whether, in this case, it is unethical for the attorney to continue to represent the wife in the divorce action.

On the facts as presented we are of the opinion that the attorney may continue to represent the wife. To hold otherwise would have two undesirable effects: (1) it would tend to discourage members of the bar from fulfilling the public policy that attorneys should make every reasonable effort to effect reconciliations in matrimonial cases, American Bar Association, Committee on Professional Ethics, Opinion 58 (1931); and (2) it would enable a disgruntled party to a reconciliation conference to unjustifiedly disqualify the opposing party's counsel and, in the present case, deprive the wife of the benefit of her own attorney's familiarity with her cause and his talents as her advocate.

The facts in this case are distinguishable from those presented in our Opinion 86, 88 N.J.L.J. 733 (1965), where the attorney after being consulted by the wife who did not retain him, was consulted by the husband who sought to retain him. Having received confidential communications from the wife with a view of possibly being her advocate, an attorney cannot become the attorney of the husband in litigation between them.

The facts here clearly distinguish this inquiry from the case of In re Braun, 49 N.J. 16 (1967), where the attorney involved saw both parties together at the time of the first conference, and thereafter, when both parties had engaged other counsel and a suit had been instituted by the wife, the attorney again was consulted by the husband. He discussed with the husband the pending divorce suit, examined the pleadings, and was requested by the husband to take over the suit and represent him. The attorney charged the husband a conference fee but apparently did nothing further because a few days after that conference the attorney was visited by the wife and agreed to represent her in the divorce suit, going so far as to secure a substitution of attorney on her behalf. When the husband protested this, the attorney withdrew as the wife's counsel. The Supreme Court found this conduct to warrant reprimand under Canons 6 and 37. But, in the present case, we do not have such improper conduct because counsel for the wife, at all times, made it clear to the husband that he was representing only the wife.

While it is our view that counsel in the pending inquiry should not have accepted the conference fee from the husband - a fee which he returned as above noted - we do not consider that his conduct in this case was improper.