Ethics Opinion

Opinion No. 74-8

August 1974

Summary: A lawyer who has been asked to arbitrate a domestic dispute between husband and wife and has advised them jointly with respect to the domestic dispute thereafter cannot represent either of them in an adversary proceeding arising from the same matter.

Facts: Husband and wife asked a lawyer to arbitrate a domestic dispute between them, to advise them as to the reasonableness of their actions, and to suggest a reasonable division of their property. The lawyer discussed the facts with each of them in detail, gave his views as to the reasonableness of the conduct of each of them, and proposed a division of their property based on the information provided to him. He told the wife that he thought she was being unreasonable, whereupon she retained another lawyer to represent her. The husband wants the lawyer first consulted by him and his wife to represent him in the matter.

Discussion: "After a lawyer has undertaken to act as an impartial arbitrator or mediator, he should not thereafter represent in the dispute any of the parties involved." Code of Professional Responsibility, EC 5-20. An attorney who counsels a married couple with a view to reconciliation "could not thereafter with propriety represent either in a divorce action." In re Braun, 49 N.J. 16,18-19, 227 A. 2d 506, 508 (1967). The representation almost certainly would require the attorney to use against the wife confidences acquired from her during the counselling, at a time when she, as well as her husband, was his client. The Code of Professional Responsibility, EC 4-5, specifically proscribes such a conflict, as does Disciplinary Rule DR 4-101(B)(2): "... a lawyer shall not knowingly... use a confidence or secret of his client to the disadvantage of the client." An attorney may not rely on the possibility or even the likely probability that representation of one spouse will not demand use against the other of previously obtained confidences. The attorney "must not accept professional employment against a client or former client which will, or even, may require him to use confidential information obtained by the attorney in the course of his professional relations with such client regarding the subject matter of the employment." ABA Opinion 165 (1936) (original emphasis).
The problem as stated to us does not indicate that the wife has in any way approved the husband's continued retainer of the attorney. Such approval might literally comply with DR 4-101(C)(1): "A lawyer may reveal ... confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them." Whatever exculpatory effect such consent might have in an ordinary commercial litigation, we believe that a matrimonial dispute is sufficiently distinguishable in terms of the emotional tensions involved to warrant the imposition of a stricter standard, calculated to ensure avoiding even the appearance of conflict. Circumstances could be imagined in which the non-retaining spouse might actively wish to have the original attorney continue representing the other spouse. Nonetheless, the occasional need generated in those rare circumstances does not appear to warrant relaxing the policy of keeping matrimonial representation free from the slightest suggestion of conflicting interest or betrayal of confidences.
Indeed some bar associations have prohibited the attorney for one spouse even from recommending an attorney to the other, see T.A. Smedley, Professional Responsibility Problems in Family Law 50-51 (1963), a restriction which Drinker would relax "where the lawyer who is suggested is thoroughly honest, and reliable [and] has not theretofore represented" the spouse represented by the recommending attorney, Drinker, Problems of Professional Ethics in Matrimonial Litigation, 66 Harv. L. Rev. 443, 453 (1953). We give no opinion on this issue, but merely note it as suggestive of the strict standards applicable to cases involving bi-spousal representation.

Permission to publish granted by the Board of Delegates, 1974. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.