May a lawyer who defended a man in a murder case later represent that man's wife in a divorce action against him?

Plain-English summary

In 1957 the inquirer had been assigned by the Superior Court to defend a man indicted for murder; the State obtained the death penalty, the attorney appealed, the conviction was reversed and remanded, and the defendant then pleaded to the indictment and was sentenced to life imprisonment, where he was still serving his term. The wife of that former client now wanted the attorney to represent her in a divorce action against the husband. The attorney asked whether that would be proper, contending the husband's interests were not adverse in the sense of being in conflict with the wife's, that the divorce ground (desertion stemming from the husband becoming enamored of another woman) arose before the crime and had no bearing on it, that the other woman did not figure in the murder trial, that the evidence on the divorce ground was within the wife's personal knowledge, and that he had not secured that evidence through his conferences with the husband.

The Committee framed the question around Canon 6, which obligates an attorney to represent his client with undivided fidelity and forbids subsequent employment, in matters in which confidence has been reposed, that affects the client's interests. The general rule is 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 previously 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 in which he formerly represented him.

The Committee reasoned that in preparing the murder defense the attorney and the husband had thoroughly confided in each other, and that it could not be doubted the reasons the defendant left his wife and his relationship with the other woman were discussed. It noted that, to maintain public confidence in the bar, it is necessary to avoid not only actual wrongdoing but even the appearance of wrongdoing, and quoted In re Mattera, 34 N.J. 259 (1961), that there is always a possibility, however remote, that confidential information received from the original client may be used to his detriment. The Committee concluded that, having represented the husband with undivided fidelity in a matter involving secrets or confidences, the inquirer should not undertake a divorce action for the wife of his previous client.

Currency note

This opinion was issued in August 1966, 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 Canon 6 (undivided fidelity and the duty to a former client) and Canon 37 (confidences). These subjects are now treated under RPC 1.9 (duties to former clients) and RPC 1.6 (confidentiality). Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a lawyer sue a former client for divorce on the other spouse's behalf?

A: On these facts, no. The Committee held the attorney should not represent the wife in a divorce against the husband he had defended on a murder charge.

Q: Did it matter that the divorce evidence was not learned in confidence?

A: The Committee acknowledged that information not acquired in confidence may be freely divulged, but stressed that the murder defense necessarily involved secrets and confidences and that even the appearance of wrongdoing must be avoided.

Q: What was the governing test?

A: Not whether the lawyer previously appeared for the party now opposed, but whether the new retainer would require him to do anything that injuriously affects the former client in a matter in which he formerly represented him.

Background and rules framework

The opinion applies Canon 6's duty of undivided fidelity to a former client, together with Canon 37 on confidences, to bar a lawyer from suing a former criminal-defense client for divorce on the spouse's behalf. In current New Jersey terms, the former-client conflict maps to RPC 1.9 and the confidentiality dimension to RPC 1.6.

Citations and references

Cases:

• In re Mattera, 34 N.J. 259 (1961): the possibility that confidential information may be used to a former client's detriment

Other authorities:

• Canons of Professional Ethics, Canon 6 (undivided fidelity) and Canon 37 (confidences)
• N.Y. County Lawyers' Ass'n, Opinion 202 (1922); A.B.A. Opinion 154 (1936)

Other opinions cited:

• NJ ACPE Opinion 6, 86 N.J.L.J. 718 (1963), and Opinion 86, 88 N.J.L.J. 773 (1965)

See also

• NJ ACPE Op. 94: Foreclosure Against a Former Client
• NJ ACPE Op. 158: Conflict of Interest; Suing a Former Client
• NJ ACPE Op. 154: Suing a Former Client in an Unrelated Matter

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp97-1.html

Original opinion text

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

89 N.J.L.J. 507
August 4, 1966

OPINION 97

Divorce Against Former Criminal Client

An inquiry has been made by an attorney stating that in 1957, he was assigned by the Superior Court in his county to defend a man who was indicted for murder. The State sought and obtained the death penalty. The attorney, thereafter, appealed the verdict and the judgment and the conviction were reversed and the matter was remanded for further proceedings. Thereafter, the defendant pleaded to the indictment and was sentenced to life imprisonment in the New Jersey State Prison where he is still serving his term.

The attorney states that the wife of the man whom he represented in the murder case now wants him to represent her in a divorce proceeding to be instituted against the husband and he asks whether it would be proper for him to represent the wife in such an action for divorce, contending that the interests of his former client, the husband, are not adverse in the sense that they are in conflict with or hostile to the interests of the wife. He reports that the action for divorce would be on the ground of a desertion which apparently came about because the defendant became enamored of another woman. This occurred prior to the commission of the crime and had no bearing upon it. The inquirer says that the other woman did not in any way figure in the murder trial. The evidence respecting the grounds for divorce was within the personal knowledge of the wife, and the inquirer did not secure this evidence as a result of his conferences with the husband.

This entire inquiry revolves itself around Canons of Professional Ethics, Canon 6, which obligates an attorney to represent his client with undivided fidelity and forbids subsequent employment from others affecting the interests of the client concerning which confidence has been reposed.

The general rule is 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 advancing 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.

We are not unmindful of the fact that in preparing the husband's case when he was on trial for murder, the attorney and the husband thoroughly confided in each other and everything pertaining to his life was considered, weighed and discussed by counsel in preparing for a defense to the accusation of murder. It cannot be doubted that during such conferences the reason why the defendant left his wife and his relationship with the other woman were discussed. Is it then not normal for the husband to feel that he has been wronged in some way, now that he is in State Prison, to be confronted by an action against him by the same attorney whom he had previously consulted concerning his most serious legal problem?

We have mentioned in many of our opinions that to maintain public confidence in the bar, it is necessary not only to avoid actual wrongdoing, but even the appearance of wrongdoing. N.Y. County Lawyers Ass'n., Committee on Professional Ethics, Opinion 202 (1922). See also, Opinion 6 of this Committee, 86 N.J.L.J. 718 (1963).

The general rule is that information not acquired by an attorney in confidence may be freely divulged. See Canon 37 and see also, ABA Comm. on Professional Ethics and Grievances, Opinion 154 (1936). However, in our Opinion 86, 88 N.J.L.J. 773 (1965), we quoted from In re Mattera, 34 N.J. 259 (1961), where the court states, at page 24, "There is always a possibility, however remote, that confidential information received from the original client may be used to his detriment."

We are of the opinion that when the attorney represented the husband in his trial for murder, it was his duty and he obviously did represent him with undivided fidelity, and we must, likewise, assume that there were secrets or confidences present in his negotiations with his client. In the opinion of this Committee, the inquirer should not undertake a divorce action for the wife of the attorney's previous client.