Can a firm represent a husband in a divorce when it represented his current wife in her earlier divorce from a previous spouse about five years before?

Plain-English summary

The inquiry asked whether an attorney could represent a long-standing client of his firm, the present husband, in a matrimonial action against his wife, A, where about five years earlier the firm had represented A in a divorce against her former husband. A had since used another attorney, had no conferences with the inquirer since her present marriage, and the inquirer knew nothing about the present marriage except from the present husband. The present husband sought a divorce and a property settlement.

The Committee recalled its Opinions 6 and 86, holding that where an attorney had consulted with a party and learned facts (about a conditional sales agreement in the first, and an existing marriage in the second), he should not later appear on behalf of either party, and its Opinion 216, reviewing matrimonial conflict situations. It pointed to Painter v. Painter, where the Supreme Court, interpreting N.J.S.A. 2A:34-23, held that a court may equitably distribute property legally and beneficially acquired by either spouse during the marriage, including assets received by gift or inheritance.

The Committee reasoned that, when the attorney represented the wife years earlier, he might have received confidential information about assets she might inherit or assets set aside for her under a trust, and that under equitable distribution this information might create a conflict and be used adversely against her. Because of that potential knowledge, it held the attorney should withdraw and should not represent either party.

Currency note

This opinion was issued in 1976, 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. Duties to former clients are now analyzed under RPC 1.9. Treat this page as historical context, not current guidance.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 firm sue a person it once represented in a divorce, now on the other spouse's behalf?

A: Under this opinion, no, where the prior representation could have exposed the former client's confidential financial information relevant to the new matter.

Q: Why did equitable distribution matter to the analysis?

A: Because under Painter v. Painter the court may distribute assets acquired by gift or inheritance, so confidences about the wife's potential inheritances or trusts could be used against her.

Q: Did the five-year gap and lack of contact cure the problem?

A: No. The Committee held the potential knowledge of the wife's confidential financial information required the attorney to withdraw from representing either party.

Background and rules framework

The opinion applied the former-client confidentiality principle of its Opinions 6, 86, and 216, read with the equitable-distribution reach of Painter v. Painter and N.J.S.A. 2A:34-23, to a firm seeking to oppose its former divorce client. In current New Jersey terms, the duty to former clients is governed by RPC 1.9.

Citations and references

Rules of Professional Conduct:

• Former-client confidentiality and conflict principles as in effect 1976; now MR 1.9 / NJ RPC 1.9

Statutes:

• N.J.S.A. 2A:34-23 (equitable distribution of marital property)

Cases:

• Painter v. Painter, 65 N.J. 196, 215 (1974)

Other opinions cited:

• NJ ACPE Opinion 6, 86 N.J.L.J. 718 (1963); Opinion 86, 88 N.J.L.J. 773 (1965); Opinion 216, 94 N.J.L.J. 677 (1971)

See also

• NJ ACPE Op. 350: Former Attorney for Reciprocal Wills Representing the Husband Against the Wife
• NJ ACPE Op. 356: A Spouse's Prior Consultation Bars the Firm
• NJ ACPE Op. 367: Suing a Former Client in an Unrelated Matter

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp334-1.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.

99 N.J.L.J. 496, June 3, 1976

OPINION 334

Conflict of Interest
Representing Husband Against Former Client Wife

The following inquiry has been made:

May an attorney represent a long-standing client of his firm in a matrimonial action against his wife, A? Approximately five years ago, the firm represented A in a divorce action against her former husband. She then married her present husband whom the firm desires to represent.

The present husband seeks a divorce and a property settlement. A has had another attorney represent her during the past five years. There have been no conferences whatever between A and the inquirer since the time of her present marriage, and the inquirer has no knowledge of any facts relating to the present marriage, except as a result of his conferences with the present husband.

In our Opinion 6, 86 N.J.L.J. 718 (1963), and Opinion 86, 88 N.J.L.J. 773 (1965), we held that where an attorney had consulted with one of the parties and had learned of facts relating in the first opinion to a conditional sales agreement and in the second to an existing marriage, he should not later appear on behalf of either party. In Opinion 216, 94 N.J.L.J. 677 (1971), we reviewed a number of our opinions where a conflict of interest might arise in matrimonial litigation.

In Painter v. Painter, 65 N.J. 196, 215 (1974), Justice Mountain, speaking for the Supreme Court, in interpreting N.J.S. 2A:34-23, held that the court is authorized to distribute equitably "the property, both real and personal, which was legally and beneficially acquired by them [the spouses] or either of them during the marriage." This would also include assets, title to which is received by gift or inheritance, or indeed in any other way. When the attorney represented the wife several years ago in her prior matrimonial action, he might have received confidential information from her as to assets which she might inherit or assets which might have been set aside for her under a trust arrangement. This confidential information might create a conflict and could be used adversely against the wife in determining the equitable distribution of the property owned by the parties. It is because of this potential knowledge that the attorney should withdraw from the case and should not represent either party.