May a lawyer sue a defendant in one case while representing that defendant's spouse in an unrelated pending matter?

Plain-English summary

The inquiry asked whether an attorney could represent a plaintiff-wife in a slander action while also representing, in a pending workmen's compensation case, the husband of the defendant in that slander action. The attorney reported that he held no confidences from the compensation case that would affect the slander defendant, that the two actions shared no common subject matter, that the husband was not a party to the slander action, and that under N.J.S.A. 37:2-8 a married woman is solely responsible for her own torts.

The Committee reviewed its prior decisions, including Opinion 154 (a lawyer may sue a former client where the representation has ended and no confidences are involved), Opinion 249 (limits on shifting sides between related matters), and Opinion 216 (quoting Canon 37, that a lawyer should not continue employment when his obligation prevents performance of his full duty to a former or new client).

Because both cases were still pending, the Committee concluded the public would not understand how an attorney could sue a woman while at the same time representing her husband in another proceeding, and that the attorney's action would be viewed with suspicion. It held that the appearance of a conflict rendered the representation of the wife in the slander action objectionable, that where doubt exists the doubt should be resolved against accepting the retainer, and that the attorney should withdraw from further representation of the plaintiff in the slander action.

Currency note

This opinion was issued in 1974, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. It rested on the appearance-of-impropriety principle, then central to New Jersey conflict analysis; current conflicts between concurrent representations are governed by RPC 1.7, and New Jersey later narrowed the standalone appearance-of-impropriety doctrine. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer sue someone while representing that person's spouse in a different matter?

A: Under this opinion, no, where both matters are pending; the Committee found the appearance of conflict objectionable and directed the lawyer to withdraw from the suit against the spouse.

Q: Did it matter that the two cases were unrelated and involved no shared confidences?

A: No. The Committee acknowledged there were no shared confidences and no common subject matter, but rested its conclusion on the appearance of conflict rather than an actual one.

Q: From which case did the lawyer have to withdraw?

A: From the slander action, in which he was suing the wife; the opinion directed withdrawal from further representation of that plaintiff.

Background and rules framework

The opinion applied the conflict-of-interest and appearance-of-impropriety principles of the Code of Professional Responsibility and the former Canons (Canon 37) to a concurrent representation adverse to a client's spouse. In current New Jersey terms, the concurrent-conflict question is governed by RPC 1.7.

Citations and references

Rules of Professional Conduct:

• Appearance-of-impropriety and conflict principles, including former Canon 37, as in effect 1974; now MR 1.7 / NJ RPC 1.7

Statutes:

• N.J.S.A. 37:2-8 (married woman solely responsible for her own torts)

Other opinions cited:

• NJ ACPE Opinion 6, 86 N.J.L.J. 718 (1963); Opinion 154, 92 N.J.L.J. 353 (1969); Opinion 216, 94 N.J.L.J. 677 (1971); Opinion 249, 96 N.J.L.J. 221 (1973)

See also

• NJ ACPE Op. 288: A Deputy Attorney General's Spouse Practicing Criminal Defense
• NJ ACPE Op. 304: Multiple-Party Conflict and Fees Upon Withdrawal

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp282-1.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.

97 N.J.L.J. 362, May 16, 1974

OPINION 282

Conflict of Interest Representing Husband of Party Sued in Different Action

Inquiry has been made whether an attorney may properly represent a plaintiff-wife in a slander action where he is representing in a workmen's compensation case the husband of the defendant in the slander action. The latter suit is still pending.

The attorney is unaware of any confidences reposed in him in connection with the compensation case of the husband of the defendant in the slander action which would affect the interest of his wife, who is the defendant in the slander action. He states that no common subject matter is involved; that both actions are unrelated; that the husband is not a party to the slander action and that there is no basis for joining him. He cites N.J.S.A. 37:2-8 which provides that a married woman is solely responsible for her torts and damages which may be recovered from her alone.

We have written several opinions on similar situations. In Opinion 154, 92 N.J.L.J. 353 (1969), it was said that a lawyer may bring a suit against a former client if the representation of the former client has been ended and the matter doesn't involve confidential communications. In Opinion 249, 96 N.J.L.J. 221 (1973), we held that a law firm which previously represented a husband in a workmen's compensation case and subsequently represented him in a products liability action with the wife suing per quod could not represent the husband in a matrimonial action between husband and wife.

In Opinion 216, 94 N.J.L.J. 677 (1971), we quoted former Canons of Professional Ethics, Canon 37 which provided:

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 present inquiry both cases are still pending. The public would not understand how an attorney can sue a woman and at the same time represent the woman's husband in another proceeding. The attorney's action would be viewed with suspicion. Attorneys must avoid the appearance of wrongdoing. It is the appearance of a conflict which renders the representation of the wife in the slander action objectionable. Where a doubt exists as to the propriety of representing plaintiff-wife under these circumstances, the doubt should be resolved against accepting the retainer.

In Opinion 6, 86 N.J.L.J. 718 (1963), we stated: "To maintain public confidence in the bar, it is necessary not only to avoid actual wrongdoing, but even appearance of wrongdoing."

For the reasons set forth, the attorney should withdraw from further representation of the plaintiff in the slander action.