Ethics Opinon 1977-6
October 21, 1977
SUBJECT: LEGAL ETHICS AND UNLAWFUL PRACTICE COMMITTEE, SAN DIEGO COUNTY BAR ASSOCIATION
A woman entered the law offices of Attorney A and spent approximately 15 minutes discussing in a general sense the aspects involved in a California dissolution of marriage. The attorney took no notes, inquired as to no specifics, offered no specific advice and represents that no confidences or secrets were disclosed by the potential client. The attorney, who frequently receives such inquiries, makes it a practice not to charge any fee for the routine presentation. Two months later Attorney A filed an action on behalf of a male client in a dissolution of marriage proceeding. Shortly thereafter, Attorney A is advised by the Attorney for the wife that the wife had previously been in the office of Attorney A regarding the same matter. Attorney A checked his records which did in fact reflect that the wife had been in his office and was the woman described above. Attorney A, however, had no independent recollection of the brief consultation with the woman. May Attorney A continue to represent his client without an ethical violation?
Since Attorney A acquired no secrets or confidences of the wife while meeting with her and since no attorney-client relationship was formed, he is able to represent the husband in the divorce proceeding without violating his ethical obligations as a lawyer.
STATUTES AND CANONS
Section 6076 of the California Business and Professions Code contains the Rules of Professional Conduct of the State Bar of California, of which the following are directly applicable to the question presented:
Rule 4-101 A member of the State Bar shall not accept employment adverse to a client or former client, without the informed and written consent of the client or former client, relating to a matter in reference to which he has obtained confidential information by reason of or in the course of his employment by such client or former client.
Rule 5-102(A) A member of the State Bar shall not accept professional employment without first disclosing his relation, if any, with the adverse party, and his interest, if any, in the subject matter of the employment. A member of the State Bar who accepts employment under this rule shall first obtain the client's written consent to such employment.
Section 6068(e) of the California Business and Professions Code provides that it is the duty of an attorney:
"To maintain inviolate the confidence, and at every peril to himself to preserve the secrets, of his client."
The American Bar Association Code of Professional Responsibility consists of three separate but interrelated parts, namely, Canons, Ethical Considerations, and Disciplinary Rules, which are defined in the "Preliminary Statement" of the Code as follows:
"The Canons are statements of axiomatic norms, expressing in general terms the standards of professional conduct expected of lawyers in their relationships with the public, with the legal system, and with the legal profession. They embody the general concepts from which the Ethical Considerations and the Disciplinary Rules are derived.
The Ethical Considerations are aspirational in character and represent the objectives toward which every member of the profession should strive. They constitute a body of principles upon which the lawyer can rely for guidance in many specific situations.
The Disciplinary Rules, unlike the Ethical Considerations, are mandatory in character. The Disciplinary Rules state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action."
The following portions of the A.B.A. Code of Professional Responsibility are directly applicable to the question presented:
"A LAWYER SHOULD PRESERVE THE CONFIDENCES
AND SECRETS OF A CLIENT"
"EC 4-1 Both the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidences and secrets of one who has employed or sought to employ him.
"DR 4-101 Preservation of Confidences and Secrets of a Client.
(B) Except when permitted under DR 4-101(C), a lawyer shall not knowingly:
(1) Reveal a confidence or secret of his client.
(2) Use a confidence or secret of his client to the disadvantage of the client.
(3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.
"A LAWYER SHOULD AVOID EVEN THE APPEARANCE
OF PROFESSIONAL IMPROPRIETY"
EC 9-2 When explicit ethical guidance does not exist, a lawyer should determine his conduct by acting in a manner that promotes public confidence in the integrity and efficiency of the legal system and the legal profession.
EC 9-6 Every lawyer owes a solemn duty . . . to strive to avoid not only professional impropriety but also the appearance of impropriety.
San Diego County Ethics Opinion 1975-1 held that an attorney who had advised the wife regarding dissolution while employed by a law firm, may not now as a member of a different law firm represent the husband in the same proceeding. The attorney had previously been the wife's attorney of record.
Opinion No. 165 of the American Bar Association, August 23, 1936, states the general rule that ". . . an attorney must not accept professional employment against a client or former client which will or 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."
It may be asserted in the case at bar that since the wife never hired the attorney and the attorney never consented to represent her in the divorce proceeding that the wife never became a client, and consequently the above stated rule does not apply. However, Ethical Consideration 4-1 of the American Bar Association (cited above) states that the rule applies to ". . . confidences and secrets of one who has employed or sought to employ him." See also, A.B.A. Opinion, 216, March 15, 1941, which provides that "The privilege applies to communications made in seeking legal advice for any purpose. The mere circumstance that the advice is given without charge therefor does not nullify the privilege." The Committee further stated that the absence of a formal attorney-client relationship does not preclude privileged communications.
A thorough review of the formal and informal opinions of the American Bar Association, as well as a number of State Bar Association opinions, reveals two differing views regarding the issue of whether an attorney's prior discussion with the wife prevents his representation of the husband.
1. Attorney May Not Represent Husband
Opinion No. 117 of the Maryland State Bar Association, 1949, states that a discussion of a divorce between an attorney and a husband prevents the attorney from accepting employment by the wife in the case, even though the husband never offered employment to the attorney. Similarly, Opinion No. 86 of the New Jersey Bar Association, 1965, states that if a wife has consulted an attorney with regard to marital problems, the attorney may not accept subsequent employment from the husband in the divorce suit.
Furthermore, New Jersey Bar Association, Opinion No. 128 (1968) presents the following situation: Several years ago a wife consulted a partner of lawyer X about a matrimonial action. The partnership was terminated, and X's former partner has since died. The husband of that wife now wishes X to bring a divorce action based on adultery which allegedly occurred a few months ago. X may not take the case.
The above opinions suggest that it would be unethical for Attorney A to represent the husband. However, none of the cases suggest that there were no confidences or secrets disclosed when the attorney communicated with the adverse party. If the discussions between the attorneys and the adverse parties in the above situation involved disclosures of confidential information, they are distinguishable from our situation as Attorney A states that only general aspects of California dissolution proceedings were discussed and privileged information was elicited.
Finally, the A.B.A. Informal Opinion 1157, July 10, 1970, suggests that the attorney should refrain from representing the husband in the divorce action:
"Disclosure of confidential communications is not the sole test in considering the propriety of acceptance of litigation against a former client. Despite the fact that the other or former client acquiesced, and there were apparently no confidences, the possibility that other matters might develop has been held to be sufficient to require the attorney to decline the employment."
"The rendition of professional services by an attorney to one party to a litigation, which thus establishes necessarily a relation of trust and confidence, precludes the acceptance of employment by such attorney in any subsequent phase of the same litigation from the adverse party. A client is encouraged to make full disclosure of all facts to his attorney, and he should be justified in feeling that his attorney will never be found helping the other side of the litigation . . . Irrespective of any actual detriment, the first client might naturally feel that he had in some way been wronged, when confronted by a final decree obtained by a lawyer employed in his behalf in an earlier part of the same litigation."
Although this opinion appears to hold that the attorney in question would violate his ethical duty by representing the husband in the divorce action, it is distinguishable from the case at issue. The attorney received no confidential information while discussing the dissolution with the wife, nor does the possibility that other matters may develop between attorney and wife exist sufficient enough to require the attorney to decline the employment. The opinion also contemplates a situation where the attorney has (1) rendered his professional services for the former client, (2) acted as attorney for the adverse party, and (3) been employed on behalf of the adverse party in an earlier part of the same litigation. The attorney involved, however, has not been employed on behalf of the wife in any part of the divorce, has not acted at any time as the wife's attorney, and offered only general legal advice without becoming involved in the specific facts, the merits of the case, or the positions of the parties.
II. Attorney May Represent Husband
Although no A.B.A. or California opinions were discovered which were directly on point, the position of California may be found in the February, 1975 Professional Responsibility Examination, administered by the Committee of Bar Examiners of the State Bar of California. Question twenty (20) of that exam presents the following hypothetical and choice of answers:
"Poe consults attorney for advice about bringing an action to quiet Poe's title to Blackacre. Poe does not disclose any of the facts on which his claim is based or the name of the potential defendant and holder of record title. Attorney informs Poe that she will consider the matter and then advise Poe whether she will represent him. Attorney then searched the records which disclose that Client, a long standing client of Attorney, is the holder of record title to Blackacre. Attorney immediately advises Poe that she will not represent him. Poe through another lawyer sues to quiet title.
Is it proper for Attorney to represent Client?
(A) Yes, because Client was prior in time to Poe.
(B) Yes, because Attorney acquired no disqualifying information from Poe.
(C) No, because after Poe had consulted Attorney on the matter, Attorney could not accept any case adverse to the interest of Poe in the same matter.
(D) No, because Attorney ascertained the name of the holder of title as a result of Poe's inquiry."
The correct answer according to the Committee of Bar Examiners is (B).
Opinion No. 89 of the New Jersey Bar Association (1966) presents the following situation: Lawyer A's client's wife telephoned A and complained of her husband's conduct, stated that they were living apart, but requested no advice. Subsequently, she asked A to request her husband to deliver certain personal property to her. A declined to do so. A may represent his client, the husband, in the divorce action.
We conclude that Attorney A may represent the husband in the divorce action. The Attorney was never actually connected with the wife's position nor did he take her side in the action. He never assisted in representing her claim or interest and acted merely as a bystander in his discussion with her. The attorney was not employed in connection with the wife's case in any capacity nor was there any confidential information disclosed to the attorney by the wife.
This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.
Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.