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ETHICS OPINION 357-1940
NUMBER 357 1940
Question. An attorney represents a husband who has been separated from his wife for several months. The wife desires to remove to Florida and become a bona fide resident there. She has approached the husband and informed him of her intentions, and she has also stated that she intends to institute divorce proceedings in Florida in the near future.
The husband and wife jointly own real and personal property, although the greatest part of it is in the wife’s name. They desire to make a property settlement whereby for a cash consideration the husband will release all his right, title, and interest in the property to his wife. The wife desires that the property settlement be made part of the Florida decree so as to bar any further claims on the husband’s part. The husband, too, is interested in incorporating the property settlement in the Florida decree, and he will appear in the proceedings to protect his interests.
The wife desires some assurance that the husband will abide by the terms of the property settlement, and requests that the moneys which are to be paid by her be held in escrow until the decree has concluded the rights of the parties. The husband is agreeable to the suggestion and will consent to the escrow arrangement until the decree is entered.
1. Would the preparation of such an agreement by an attorney be deemed unethical?
2. Would the holding of the funds by the wife’s attorney or the husband’s attorney be deemed unethical?
Answer. If the attorney can satisfy himself that the parties have the legal right to enter into such a contract and that the contract is enforceable (see Section 5 1, N.Y. Domestic Relations Law; Lake v. Lake, 136 App. Div. 47 and 119 N.Y. 686; Schley v, Andrews, 225 N.Y. 110; Butler v. Marcus, 264 N.Y. 519; Miller v. Miller, 284 Pa. 414, 131 Atl 236; Comm, of Internal Revenue v. Hyde, 82 F. 2d 174), then the preparation of the agreement and the holding of the funds would both be proper, if he cannot so satisfy himself, then the conduct would be improper.