Can a lawyer's firm defend a wrongful-death action when a partner once represented the deceased in a marital dispute with the plaintiff widow?

Plain-English summary

An attorney had represented a husband during marital difficulties; after a conference the husband and wife reconciled. The husband later died, and the wife brought a Wrongful Death Act claim on behalf of the next of kin. The attorney who had represented the husband was a partner in the firm now representing two of the defendants in the death action. The inquiry asked whether this created a conflict of interest.

The Committee applied Canon 6, which forbids representing conflicting interests and bars accepting later employment adversely affecting an interest of a client as to which confidence was reposed. Quoting Drinker, it noted that the bar on representing conflicting interests applies equally to law partners, and that the test is whether the new retainer would require the lawyer to use against a former client knowledge acquired through the earlier relationship. It also recalled Opinion 26, applying Canon 37's duty to preserve client confidences beyond the period of employment.

The Committee reasoned that the deceased had been separated from his wife at the time of death, a fact the defense would bring out to minimize the verdict, and that the partner's knowledge of the prior separation was chargeable to counsel for the defendants. It concluded that the representation as outlined violated the Canons of Professional Ethics. The Committee added that it declined to address later correspondence raising new, disputed factual and legal questions in the pending action, which might affect the parties' interests.

Currency note

This opinion was issued in November 1964, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), and well before the 1984 Rules of Professional Conduct and all later revisions. It applied Canons 6 and 37 of the former Canons of Professional Ethics; the corresponding subjects are now governed by RPC 1.9 (duties to former clients), RPC 1.10 (imputation of conflicts within a firm), and RPC 1.6 (confidentiality). Treat this page as historical context, not current guidance.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: Why was the conflict imputed to the whole firm and not just the one partner?

A: The Committee, quoting Drinker, held that the bar on representing conflicting interests applies equally to law partners, so the partner's knowledge from representing the husband was chargeable to the counsel of record for the defendants.

Q: What confidential knowledge created the problem?

A: The partner had represented the husband in the prior marital separation. The Committee reasoned the defense would use the fact of separation to minimize the wrongful-death verdict, turning that knowledge against the former client.

Q: Did the Committee resolve every question the inquiry raised?

A: No. It declined to address later correspondence raising new, disputed factual and legal questions in the pending action, finding those might affect the parties' interests and were not proper for the Committee.

Background and rules framework

The opinion applied Canon 6 of the former Canons of Professional Ethics, which prohibited representing conflicting interests and accepting later employment adverse to a client as to which confidences were reposed, and Canon 37, which required preserving client confidences beyond the term of employment. It relied on Drinker, Legal Ethics (1953), and on the Committee's Opinion 26. Today these subjects are addressed by RPC 1.9, RPC 1.10, and RPC 1.6.

Citations and references

Rules of Professional Conduct (as in effect at the time):

• Canon of Professional Ethics 6 (adverse influences and conflicting interests)
• Canon of Professional Ethics 37 (confidences of a client)

Cases:

• In re Boone, 83 F. 944, 952-53 (Cir. N.D. Cal. 1897), test of inconsistent representation (quoted via Drinker)

Other opinions cited:

• N.J. ACPE Opinion 26, 87 N.J.L.J. 19 (1964): Canon 37 duty to preserve confidences extends beyond employment
• Drinker, Legal Ethics 105-106 (1953): conflicting-interest bar applies to law partners

See also

• NJ ACPE Op. 158: Suing a Former Client
• NJ ACPE Op. 153: Representing Heirs Against a Former Client Administrator
• NJ ACPE Op. 135: Suing an Estate Previously Represented

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp57-1.html

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

87 N.J.L.J. 737
November 19, 1964

OPINION 57

Conflict of Interest
Opposing Kin of Deceased Client

An attorney represented a husband having marital difficulties and separated from his wife. Following a successful conference, the parties were reconciled.

The husband is now deceased and the wife has instituted an action, under the Wrongful Death Act for the death of her husband, to recover damages on behalf of the next of kin. The attorney who originally represented the husband is a partner of the law firm presently representing two of the defendants in the death action. Inquiry is sought as to possible conflicts of interest.

Canons of Professional Ethics, Canon 6 states:

It is unprofessional to represent conflicting interests... The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also 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.

Drinker, Legal Ethics (1953) states:

The test of inconsistency is not whether the attorney has ever appeared for the party against whom he now proposes to appear, but it is whether his accepting the new retainer will require him, in forwarding the interests of his new client, to do anything which will injuriously affect his former client in any matter in which he formerly represented him, and also whether he will be called upon, in his new relation, to use against his former client any knowledge or information acquired through their former connection. In Re Boone, 83 F. 944, 952-3, (Cir. N.D. Cal. 1897)

The injunction not to represent conflicting interests applies equally to law partners representing different clients who have interests conflicting with one another;... at pp. 105-106.

Our N.J. Advisory Committee on Professional Ethics, Opinion 26, 87 N.J.L.J. 19 (1964), states:

Canon 37 imposes upon an attorney a strict obligation to preserve his client's confidences, and the duty thus imposed extends beyond the time of his employment. This canon also enjoins a lawyer from using confidences reposed in him to the disadvantage of the client.

Recovery from wrongful death under the New Jersey statute is for the benefit of the next of kin of the deceased, and the basis of recovery is the pecuniary loss sustained by each. The action outlined in this inquiry is for the benefit of the widow of the deceased and their two minor children. At the time of death, the deceased had been separated from his wife for two weeks, and surely this fact will be brought out at the trial by the defense in the hope that this evidence will be considered by the jury to minimize its verdict.

The knowledge and information obtained by the law partner in representation of the husband in a prior separation of the husband and wife, is chargeable to counsel representing two of the defendants in this action, who will be called upon to use it against his former client.

It is the opinion of this Committee that the representation as outlined in this inquiry is in violation of the Canons of Professional Ethics and, further, that its opinion will not affect the interests of the parties in the present litigation.

Correspondence relating to this inquiry, which raises new inquiries pertaining thereto, has been received by the Committee subsequent to the initial inquiry, involving disputed factual and legal questions in the pending action, which in the opinion of this Committee might affect the interests of the parties and therefore may not be accepted by the Committee.