Can a legal services organization represent a wife in a divorce when its predecessor office had earlier represented the husband in unrelated matters?

Plain-English summary

A county legal services corporation (the "Y" Corporation), assumed to be a nonprofit funded by the Office of Economic Opportunity, succeeded a substantially similar entity (the "X" Corporation), and held the predecessor's open and closed files. Mrs. S had received divorce advice from an X Corporation attorney in 1966. Over 1967 and 1968, Mr. S was represented or advised by X Corporation attorneys on criminal charges and a domestic-relations matter. In 1968, Mrs. S came to Y Corporation, which instituted a divorce suit for her; as default was about to be entered, Y Corporation discovered in a closed file the prior dealings of X Corporation with Mr. S. The question was whether Y Corporation could ethically proceed with the divorce for Mrs. S.

The Committee applied Canon 6 (disclosure and the bar on accepting employment adverse to a client whose confidences were reposed) and Canon 37 (preserving confidences and not continuing employment that prevents full duty to a former or new client). It relied on In re Braun, where the Court held that the intent of Canons 6 and 37 is violated whenever an attorney's conduct raises the possibility that he has or may use one client's confidences for another, and on Opinion 128, which held it unethical for an attorney to represent a husband where the wife had consulted the attorney's former partner, even though no confidences were actually disclosed, because for these purposes the client of one partner is the client of all.

The Committee held that the X and Y Corporations are in the same category as law partnerships, so the actions of X must be considered the actions of Y, and the change of corporate name or personnel is of no consequence. Because an attorney-client relationship existed between Mr. and Mrs. S and the attorneys of the entities, the Committee concluded it would be unprofessional for Y Corporation to proceed with the divorce action on behalf of Mrs. S.

Currency note

This opinion was issued in May 1969, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), so the Committee was applying the Canons of Professional Ethics (Canons 6 and 37) and its own prior opinions. It also predates the 1984 Rules of Professional Conduct and all later revisions. The duty to former clients is now treated under RPC 1.9, and the imputation of one lawyer's (or office's) conflict to the others under RPC 1.10. 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: Does a successor legal services office inherit its predecessor's client conflicts?

A: Yes. The Committee held the predecessor and successor corporations are treated like a single law partnership, so the predecessor's prior representation of the husband bars the successor from representing the wife against him.

Q: Does it matter that a different attorney handled the wife's case and no confidences were shared?

A: No. Following In re Braun and Opinion 128, the Committee held the conflict turns on the possibility that one client's confidences could be used for another; for these purposes the client of one partner (or office) is the client of all.

Q: What should the office have done on discovering the prior representation?

A: The Committee concluded it would be unprofessional to proceed with the divorce for the wife, so the office could not continue that representation.

Background and rules framework

The opinion applied Canons 6 and 37 of the Canons of Professional Ethics, treating successor legal services corporations as a single law partnership for conflict purposes, drawing on In re Braun, In re Blatt, and Opinion 128. In current New Jersey terms the duty to former clients is governed by RPC 1.9 and imputation by RPC 1.10.

Citations and references

Cases:

• In re Braun, 49 N.J. 16 (1967)
• In re Blatt, 42 N.J. 522 (1964)

Other authorities:

• Canons of Professional Ethics, Canons 6 and 37
• NJ ACPE Opinion 128, 91 N.J.L.J. 309 (1968)
• NJ ACPE Opinions 26, 86, 89, 68, 42, and 126

See also

• NJ ACPE Op. 158: Suing a Former Client in a Wholly Unrelated Matter
• NJ ACPE Op. 211: Action Against a Former Corporate Client
• NJ ACPE Op. 531: Opposing a Former Partner's Corporate Client in an Unrelated Divorce

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp155-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

92 N.J.L.J. 358, May 29, 1969

OPINION 155

Conflict of Interest Legal Services Corporations Suing Former Client Husband-Wife

This inquiry is presented by a county legal services corporation (hereinafter referred to as the "Y" Corporation) which we assume is a nonprofit corporation funded by the Office of Economic Opportunity. The pertinent facts are as follows:

The Y Corporation succeeded an entity (hereinafter referred to as the "X" Corporation) which was, except for personnel and administrative structure, substantially similar in operation (including funding), communities served and type of work. The files of the X Corporation are in the possession of the Y Corporation. The "open" files are being processed. The "closed" files are stored for reference.

Mrs. S, in September 1966, sought and received advice from an attorney at the office of the X Corporation concerning a divorce. About eight months later, in May 1967, her husband went to the X Corporation regarding criminal charges against him in a municipal court, unrelated to his domestic affairs, and presumably received advice from an attorney different from the one who interviewed his wife. Mr. S was also represented by the X Corporation in January 1968 on a criminal charge in a municipal court and a month later, in February 1968, received advice relating to a domestic relations court appearance. Six months later, in August 1968, Mrs. S came to the Y Corporation and a suit for divorce was instituted on her behalf. A request to enter default against Mr. S in the divorce action, was about to be entered when the Y Corporation discovered, in a closed file, the prior dealings of X Corporation with Mr. S, as above related. The question for determination is whether the Y Corporation can ethically proceed with the divorce action on behalf of Mrs. S.

Canons of Professional Ethics, Canon 6 imposes a duty on a lawyer "to disclose to the client all the circumstances of his relations to the parties, and any interest in or connection with the controversy," and forbids "the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed." Canon 37 provides, in part:

It is the duty of a lawyer to preserve his client's confidences. This duty outlasts the lawyer's employment, and extends as well to his employees; and neither of them should accept employment which involves or may involve the disclosure or use of these confidences... . A lawyer should not continue employment when he discovers that this obligation prevents the performance of his full duty to his former or to his new client.

In the case of In re Braun, 49 N.J. 16 (1967), the Court considered a presentment charging that an attorney violated the Canons of Professional Ethics, Canons 6 and 37, in that he had advised a husband and wife, with a view to reconciliation, and subsequently represented one against the other in a divorce action. The Court said (at page 18):

The factual contention of respondent that no actual confidence was received is without merit even if true. The intent of Canons 6 and 37 is violated whenever the conduct of an attorney raises the possibility that he has or may use the confidences of one client for the benefit of another. In re Blatt, 42 N.J. 522, 524, (1964). Therefore, after respondent had attempted to counsel both husband and wife with a view to reconciliation at the meeting of June 1964, he could not thereafter with propriety represent either in a divorce action. N.J. Advisory Committee on Professional Ethics, Opinion 26, 87 N.J.L.J. 19 (1964). And apart from the meeting of June 1964, after respondent discussed the marital and financial problems of complainant in April 1965, it was highly improper for him to agree to substitute himself as attorney for complainant's wife in her divorce action. N.J. Advisory Committee on Professional Ethics, Opinion 86, 88 N.J.L.J. 773 (1965). To be distinguished are those instances in which the attorney at all times represents one party, and his contact with the other party is limited to non-confidential situations wherein the adversary position of the attorney is clear. N.J. Advisory Committee on Professional Ethics, Opinion 89, 89 N.J.L.J. 56 (1966).

In our Opinion 128, 91 N.J.L.J. 309 (1968), which concerned the propriety of an attorney representing a husband in a divorce action where the wife had consulted the former partner of the attorney about her matrimonial difficulties during the existence of the partnership, we held that it would be unethical to do so even though the attorney had never interviewed the wife and no confidences were disclosed to him by his former partner. We said:

For all intents and purposes, the client of one partner is a client of all the partners. ... The inquirer here, however, states that no confidence had been reposed in him. But this Committee has made clear in the past that the appearance of conflict, even where no actual conflict exists, may require disengagement by an attorney from the matter which gives rise to such an appearance. See our Opinion 68, 88 N.J.L.J. 91 (1965) and 42, 87 N.J.L.J. 285 (1964).

See also N.J. Advisory Committee on Professional Ethics Opinion 126, 91 N.J.L.J. 257 (1968).

We consider the X and Y Corporations in the same category as law partnerships and the ethical standards established by the Canons of Professional Ethics and the decisions of our courts apply to said entities with the same force and effect as they apply to attorneys in a law partnership. We believe the actions of the X Corporation must be considered the actions of the Y Corporation. The change of the name of the corporate entity or the change of the personnel is of no consequence. It is the attorney-client relationship that must be considered and this relationship existed between Mr. and Mrs. S and all the attorneys of the entities. We conclude, therefore, that it would be unprofessional for the Y Corporation to proceed with the divorce action of behalf of Mrs. S.