Can a lawyer represent a husband on appeal in a matrimonial case when the wife once consulted the lawyer's firm about that same matter, even though she never retained it and paid no fee?

Plain-English summary

A woman conferred with a member of the inquirer's firm about a possible matrimonial action; the inquiry did not make clear whether it was the inquirer or another member of the firm, but no notes or history were taken, no retainer was paid, and no fee was charged. The matrimonial action against the husband was later brought through other attorneys, and neither the inquirer's firm nor any member was involved in the trial, the appeal, or the trial on remand. The husband then asked the inquirer to write his appellate brief on his appeal from the judgment on remand, and the wife objected because she had once consulted the firm.

The Committee held the inquirer could not take the representation. Under DR 5-105(A) a lawyer must decline employment if his independent professional judgment for a client is likely to be adversely affected, and under DR 5-105(D) it made no difference whether the husband sought the lawyer originally consulted by the wife or another member of the same firm. Under DR 4-101(B)(3) a lawyer may not knowingly use a client's confidence for the advantage of a third person without the client's consent; here the wife had not merely withheld consent but expressly objected.

The Committee rejected the argument that writing an appeal based solely on the record and the law eliminated the risk of using the wife's confidences. The confidences could lead the inquirer to emphasize or minimize parts of the record he otherwise would not, or to characterize the wife based on the interview, even without mentioning it. Although the conflict might seem tenuous, the Committee found it real and dispositive, citing In re Blatt, and concluded the inquirer and all members of his firm were precluded from writing the appeal.

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 a prospective client who only consulted the firm are now addressed by RPC 1.18, with related former-client and imputation analysis under RPC 1.9 and RPC 1.10. Treat this page as historical context, not current guidance.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: Does an unpaid, informal consultation create a conflict?

A: Under this opinion, yes. The Committee held that the absence of a retainer, notes, or a fee did not free the firm to take the other spouse's side.

Q: Does the bar extend to the whole firm?

A: Yes. Under DR 5-105(D) it made no difference whether the husband sought the lawyer the wife consulted or another member of the same firm.

Q: Why wasn't a record-only appeal safe?

A: The Committee reasoned the wife's confidences could shape how the inquirer emphasized parts of the record or characterized the wife, so the conflict was real even on a record-based appeal.

Background and rules framework

The opinion applied DR 5-105(A) and (D) and DR 4-101(B)(3), reinforced by In re Blatt, to a prospective-client consultation by one spouse. In current New Jersey terms, duties to a prospective client are governed by RPC 1.18, with former-client and imputation rules under RPC 1.9 and RPC 1.10.

Citations and references

Rules of Professional Conduct:

• DR 5-105(A) and (D) (declining conflicting employment; imputation to the firm), as in effect 1976; now MR 1.10 / NJ RPC 1.10
• DR 4-101(B)(3) (not using a client's confidence to a third person's advantage), as in effect 1976; now MR 1.6 / NJ RPC 1.6
• Prospective-client duties now under MR 1.18 / NJ RPC 1.18

Cases:

• In re Blatt, 42 N.J. 522, 524 (1964), on not representing the opposing party after representing a litigant in a cause

Other opinions cited:

• NJ ACPE Opinion 89, 89 N.J.L.J. 66 (1966)

See also

• NJ ACPE Op. 350: Former Attorney for Reciprocal Wills Representing the Husband Against the Wife
• NJ ACPE Op. 352: Suing a Former Client in an Unrelated Matter (Two Inquiries)
• 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/acp356-1.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.

OPINION 356

Conflict of Interest - Consultation with Wife Precluding Representation of Husband

A woman conferred with a member of the inquirer's firm concerning a possible matrimonial action. The inquiry does not make clear whether it was he or another member of the firm with whom she conferred. No notes or history were taken, no retainer was paid, no fees for the conference were charged.

The matrimonial action against the husband was instituted by the woman through other attorneys. Neither the inquirer's firm nor any member of it was involved in this action, either in the trial court, the ensuing appeal to the Appellate Division or in the trial on remand.

The husband now desires to retain the inquirer to represent him in writing the appellate brief on his appeal to the Appellate Division from the trial court's Judgment on remand. The wife objects to the representation "since she has consulted with the inquirer at one time, although she never retained him."

The inquirer asks whether he may properly represent the husband. We think not.

A lawyer is required to decline proffered employment if the exercise of his independent professional judgment on behalf of a client will be or is likely to be adversely affected by the acceptance of such employment. DR 5-105(A). It makes no difference whether the husband now seeks to retain the attorney who was originally consulted by the wife or another member of the same firm. DR 5-105(D). A lawyer may not knowingly use a confidence of his client for the advantage of a third person, unless the client consents after full disclosure. DR 4-101(B)(3). Here, the wife has done more than withhold consent; she has expressly objected to the representation of the husband.

That the proposed retention of the inquirer is to write an appeal, based solely on the record and applicable law, does not mean, as the inquirer contends, that there is no possibility that the inquirer will improperly disclose or use the wife's confidences. The confidences reposed in the inquirer might lead him to emphasize in his argument some parts of the record which he would otherwise refrain from emphasizing or to minimize or ignore other parts of the record which he might otherwise stress. In the course of the appeal, the inquirer might characterize the wife or her behavior according to her demeanor observed or information gathered at the interview, even though we can safely assume that he would not directly mention the interview. Although the conflict here may seem somewhat tenuous, it is real and it is dispositive.

In In re Blatt, 42 N.J. 522, 524 (1964), the Court said:

[W]here a member of the bar represents a litigant in a cause, he should not thereafter represent the opposing party in any step in the proceedings in or arising out of the same cause. There is always a possibility, however remote, that confidential information received from the original client may be used to his detriment. Such conduct is plainly and patently unethical.

In a situation analogous to that presented here, we said:

The attorney seems to believe that because he was not retained, made no notes, and received no consultation fee, there would be nothing improper in later representing the other spouse. To this conclusion, we cannot agree. If, after being consulted, the obligation of an attorney to a prospective client under Canon 6, to avoid representing conflicting interests, or under Canon 37, to preserve his client's confidences, were limited to a case in which a retainer was accepted, and notes were made by the lawyer, every prospective client would be afraid to consult a lawyer for fear that he might later take the other side of the controversy.

See also Opinion 89, 89 N.J.L.J. 66 (1966).

Accordingly, we conclude that the inquirer and all members of his firm are precluded from writing an appeal for the husband.