NUMBER 265 1928

Question. In the opinion of the Committee, is it proper for the attorney for a wife in a divorce suit brought by her:

1. To prepare for the husband, not appearing by or represented by an attorney, an answer to be executed by him and filed in his behalf in the suit, denying the charges against him in the complaint and calling for proof thereof (though admitting the other jurisdictional facts), for the purpose of avoiding the delay in the suit incident to serving him with process as a defendant and awaiting his appearance or default;

2. To prepare interrogatories with the answers thereto already written down and transmit the same to the wife (his client the complainant), she residing outside of the state, the same to be filed in the case after she had sworn to the same before a notary out of the state authorized by order of court to take her testimony, the same to be used in the case as her testimony, the attorney contending that the answers already prepared by him in typewritten form for her execution were based on information previously given him orally or by letter correspondence;

3. To advise the husband as to the making of the answer to the bill;

4. To do the acts indicated in 1, 2, and 3, or any of them, without disclosure to the Court of his participation therein;

5. Would it make any difference in the Committee’s answer to the inquiries, if the attorney voluntarily disclosed to the Court before decree his said participation;

6. In the case supposed the husband does not desire nor intend to defend, other than by interposing the answer at the request of the plaintiff s attorney, nor does he desire nor intend to procure the services of an attorney in his behalf nor as his advisor;

7. In such case, would it make any difference in the Committee’s answer if, before the institution, of the suit, the husband agreed to pay complainant s solicitor a counsel fee (allowable under court practice), the amount in the case not being determined by the Court but determined by complainant’s solicitor and agreed to by the husband, who simultaneously also agrees that he will pay the costs and complainant’s solicitor’s fee, conditioned on alimony being waived, the husband also being advised at the time by complainant’s solicitor that he has the right at any time before the case is closed to employ an attorney and offer testimony, but he does not do so;

8. Would it make any difference in the Committee’s answer if. instead of making the disclosure to the Court before decree, the disclosure were deferred until after a master’s or a referee’s report upon the papers submitted, recommending a divorce, and the entry of decree accordingly, and subsequent inquiry by the judge after setting aside the decree for the purpose of such inquiry.

Answer. The opinion of the Committee is as follows;

1 and 3. The attorney for the wife should not act for the husband in any respect; he should refrain from the preparation of the answer and the giving of professional advice to the husband.

2. The attorney should not formulate the answers to be given by the wife as a witness (See Matter of Eldridge, 82 NY. 161).

4. The disclosure would not make the conduct proper.

5. No.

6 and 7. No, moreover, question 7 indicates that the attorney may have put himself into a position where his personal desire for his compensation may conflict with the interests of his client in waiving the alimony.


8. No, the difference between a voluntary disclosure as indicated in 4 and the subsequent disclosure as indicated in 8 may have some bearing upon the lawyer’s good faith, but not upon the propriety of his conduct mentioned in 1 2. and 3