Can a lawyer who once drew reciprocal wills for a husband and wife later represent the husband in a divorce against the wife?

Plain-English summary

The inquirer had been asked to represent a husband in a divorce. Several years earlier, the husband had asked him to draw reciprocal wills for himself and his wife. The attorney received all of his information for the wills, financial and otherwise, from the husband, and stated that the wife gave him no specific information. After drawing the wills, the attorney represented the husband and the husband's business but had no further contact with the wife. He asked whether he could now represent the husband in the matrimonial proceeding against the wife.

The Committee restated the general rule from its Opinion 97 that an attorney who has acted for one party cannot render services against that former client, on the theory that information and confidences from the former relationship should not be used to the former client's detriment; the test is not whether the attorney once appeared for the party now opposed, but whether the new retainer would require him to do anything injuriously affecting the former client in a matter he formerly handled. It noted this rule had been applied in Opinions 216 and 275, and that an agreement to represent one spouse against the other after prior dealings with both should be entered into very cautiously.

The Committee held that, on these facts, there had apparently been no prior opportunity for the inquirer to obtain any confidential information from the wife that could injure her in the matrimonial proceeding. It therefore held that Opinion 216, rather than Opinion 275, controlled, and that applying the general rule and test of Opinion 97 there could be no other result than to permit the representation.

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 of this kind 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 Treat this page as historical context, not current guidance.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 lawyer who drew a couple's wills later take one spouse's divorce?

A: Under this opinion, yes on these facts, because the lawyer obtained no confidential information from the other spouse that could be used against her.

Q: What was the controlling test?

A: Whether the new representation would require the lawyer to do anything injuriously affecting the former client in a matter he formerly handled, as stated in Opinion 97.

Q: Why did Opinion 216 control rather than Opinion 275?

A: Because there had been no prior opportunity to obtain confidences from the wife, the situation matched the permissive line of Opinion 216 rather than the barring line of Opinion 275.

Background and rules framework

The opinion applied the former-client test of its Opinion 97, as developed in Opinions 216 and 275, to a lawyer who had drawn reciprocal wills and now sought to handle one spouse's divorce. 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 conflict principles as in effect 1976; now MR 1.9 / NJ RPC 1.9

Other opinions cited:

• NJ ACPE Opinion 97, 89 N.J.L.J. 507 (1966); Opinion 216, 94 N.J.L.J. 677 (1971); Opinion 275, 96 N.J.L.J. 1458 (1973)

See also

• NJ ACPE Op. 352: Suing a Former Client in an Unrelated Matter (Two Inquiries)
• 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/acp350-1.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. 777, September 2, 1976

OPINION 350

Conflict of Interest - Former Attorney for Reciprocal Wills Representing Husband Against Wife

The inquirer has been asked to represent a husband in a divorce proceeding. Several years ago, he was asked by the husband to draw reciprocal wills for himself and his wife. The attorney received all his information regarding drawing of the wills, both financial and otherwise, from the husband. He states that no specific information was given to him by the wife. Subsequent to drawing the wills, the attorney represented the husband and the husband's business, but he had no further contact with the wife. He now seeks the opinion of this Committee as to whether he may represent the husband in a matrimonial proceeding against the wife.

Our Opinion 97, 89 N.J.L.J. 507 (1966), stated the general rule that:

When an attorney has acted for one party, he cannot render services professionally against the former client and the theory is that information and confidences acquired during the existence of the former relationship of attorney and client should not be used to the detriment of the former client.

The test is not whether the attorney has appeared for the party against whom he now appears, but whether his accepting the new retainer will require him in the interests of his new client, to do anything which will injuriously affect his former client in any matter which he formerly represented him.

The general rule thus expressed was applied in our Opinion 216, 94 N.J.L.J. 677 (1971), and in Opinion 275, 96 N.J.L.J. 1458 (1973). All the relevant and applicable prior opinions of this Committee bearing on the issue presented are cited in these two opinions, and they consistently apply the philosophy of this Committee to the effect that an agreement to represent one spouse against the other where there been prior dealings between an attorney and both spouses should be very cautiously entered into by the attorney. Thus, the admonition in Opinion 216, supra.

However, under the circumstances described in this inquiry, there apparently was no prior opportunity for the inquirer to have obtained any confidential information from the wife which could in any way injuriously affect her in the prospective matrimonial proceedings in which the inquirer will represent her husband. Thus Opinion 216, supra, rather than Opinion 275, supra, should control here. Applying the general rule and test referred to above in our Opinion 97, supra, there can be no other result.