ETHICS OPINION 289
NUMBER 289 1932
Question. Mrs. A (my client) married B in September, 1924, in New York State. About three years ago, while A and B were residents of New York State, but living apart, they entered into a separation agreement which, among other matter, provided for B to pay A a nominal sum in lieu of support and maintenance. The said sum has long since been utilized by A for living purposes. Since the separation agreement A has not seen B.
B recently established a residence in Nevada, and has commenced action against A for divorce based on the grounds of extreme cruelty. Any justification that B may have for his action presumably is based on acts committed by A prior to the institution of the action. B, through his Nevada attorney, has written to A informing her of the commencement of said action and has requested A to sign an acknowledgment of service of process and submit to the jurisdiction of the Nevada courts.
In view of the likelihood of no provision being made for the support and maintenance of A in any decree obtained by B against her, A desires B to pay her a sum of money for A either to appear in person in Nevada, or otherwise submit to the jurisdiction of the Nevada courts by an authorization in writing. In the event that A does not receive a sum of money from B she will not submit to the jurisdiction of the Nevada courts. In no event does A intend to contest the action.
Having in mind that a cause of action, if, any, is now accrued, and that A is not required to perform any act to strengthen B’s cause of action, would it be proper for me as A’s attorney to write to B’s attorney in Nevada, informing him of A’s wishes.
Answer. The Committee sees nothing improper in the proposed communication, provided the plan does not contemplate either concealment from the Court or appearance by attorneys selected by the plaintiff. The defendant is legally free either to submit or to refuse submission to the Nevada jurisdiction, and unless affected by moral factors not stated in the question her decision is accordingly the proper subject matter of an honest bargain. Where an action for divorce has been commenced on valid grounds facilitation of the decree by the party at fault is not in itself improper. Nor is a New York attorney to be criticized for participating in the lawful dissolution in another jurisdiction of the marriage of a New York citizen, merely because the grounds are not sufficient to obtain a divorce in New York.
In the opinion of the Committee the bargain for appearance should be disclosed to the Court and the lawyer should so advise his client and the plaintiff’s attorney.