A question of professional ethics has arisen in my practice, upon which I would appreciate your early advice, I have been practicing law for almost 39 years. In recent years, I have specialized in matrimonial and family problems, particularly In the litigation and appeal field. I have lectured extensively in the field and by means of reported cases and mass media, my name has become known in the field as a specialist. Almost my entire practice is the result of recommendations by the profession.
Recently I was recommended to the plaintiff-wife in a marital action through a well-known law firm in New York who is desirous that I be substituted for an attorney who has represented her for many months. There is no question of the willingness of the attorney whose substitution is being sought. I have learned, however, that there is objection to my coming into the case by the attorney for the defendant upon the grounds that I had previously been consulted by the defendant-husband. A search of my diary entries, my files and fee records Indicates that there is nothing in my office concerning the defendant in this action, or that I have even seen him.
I have this day spoken to Mr. “A” at “A & B”, and he advises me that he consulted with me and with the defendant for about a half-hour to an hour at my office on May 12, 1966. He stated to me that he was sent to me by another well-known New York law firm and that since I requested a retaining fee of $3,500.00, it was decided not to retain me. I have absolutely no recollection of Mr. “A” or his client, Mr. “C”, or of anything which might have transpired in the short time they were with me. However, I do receive recommendations from the second New York law firm and my usual retaining fee is in the amount stated by Mr. “A”. I am, therefore, constrained to believe that he was with me at and during the time indicated by him. Mr. “C”, however, was at no time a client of mine and I can only believe that if a talk was held, it was in generalities.
I would appreciate your advice, therefore, as to whether or not, under the circumstances hereinabove indicated, you feel I am disqualified from representing Mrs “C” in this action. Inasmuch as she is under considerable financial pressure, and steps should be taken to activate this case in court, your early advice would be appreciated.
(The inquiring attorney furnished by telephone the following relevant information):
“The present attorney for the defendant husband claims that confidential matter was disclosed to me at the time of the defendant’s consultation with me, although I do not now recall any such disclosure. The attorney for the defendant husband objects to my now coming into the case.”
We believe it would be improper for the attorney to accept the proposed retainer by the wife.
The sound policy of the Canons, particularly Canons 6 and 37, is to encourage full disclosure or all relevant facts to an attorney and he should never be faced with representing conflicting interest without the express consent of all concerned after full disclosure of the facts.
Here confidential communications may well have been made to the attorney by the husband, The sound policy of these Canons would be violated if the attorney now were to accept a retainer from the wife despite the fact that Canons 6 and 37 refer expressly only to “client and that here no client relationship resulted from the preliminary conference with the husband (A,B,A, opinion 216; Drinker “Legal Ethics p. 134), and that the attorney does not presently recall any of the confidences now claimed by the present attorney of the husband to have been disclosed at that conference. A subsequent recollection of some of these confidences by the attorney, in the event of retention by the wife, would be grounds for his withdrawal from the case| to the detriment of the wife
Moreover, the fact that the present attorney for the husband objects to the inquiring attorney’s now being retained by the wife underscores the impropriety of an acceptance of the retainer here.
“An attorney, in weighing the possibilities of a particular situation with respect to conflicting interests and the possible misuse of confidential information, should always have in mind his duty to uphold the honor and to maintain the dignity of the profession (Canon 29) and should therefore be zealous to avoid not only evil, but the appearance of evil,” (Opinion 427 of the Association of the Bar of the City of New York.)
January 30, 1968