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OBA Ethics Counsel

Ethics Opinion No. 134

Adopted February 27, 1937

The Board is in receipt of the following request for an opinion:

"Attorney 'A' was employed by Mr. X and Mrs. X to draw a separation agreement for the division of their property. After such agreement was drawn and executed, Mrs. X employed Attorney 'A' to procure a divorce for her. Mr. X paid the fee of Attorney 'A' together with the court costs.

Thereafter Attorney 'A' was asked by Mr. X whether or not a suit for alienation of affections against one Mrs. Y might be maintained by Mrs. X. This inquiry by Mr. X was made after the divorce decree had been granted, Mrs. Y being one with whom he had been keeping company prior thereto. The inquiry was merely a 'curbstone question' and to which Attorney 'A' made no definite answer.

Still later Mrs. X, then divorced, came to the office of Attorney 'A' and asked him to represent her in an alienation suit against Mrs. Y. But Attorney 'A' advised her that he would not take such case, and would not permit her to tell him of her suit.

Officing with Attorney 'A' is Attorney 'B'; however the relationship of partners does not exist between them, and they only use a common library and reception room, and have never held themselves out as partners.

On telling Mrs. X that he would not represent her, Attorney 'A' suggested that she employ Attorney 'B' to represent her. Thereupon she went to Attorney 'B' who investigated her case.

Question 1. May Attorney 'B' ethically represent Mrs. X in an alienation suit against Mrs. Y who has now married Mr. X?

Question 2. May Attorney 'A' ethically assist Attorney 'B' in the prosecution of such alienation suit against Mrs. Y, (now the wife of Mr. X)?

Question 3. May Attorney 'A' ethically represent Mrs. Y, in the event such opportunity arose in the defense of an alienation suit which would be filed by some other attorney than Attorney 'B'?

It might be added here that Attorneys 'A' and 'B' have not talked about the case, or any of the phases thereof, or the merits of either side thereof, as they are in no wise partners. Neither is it at all contemplated that they would in any event be on opposite sides of said suit. Nor is it assumed that Attorney 'B' would assist Attorney 'A' in the defense of the alienation suit when and if filed by another attorney, as Attorney 'B' has investigated the case for Mrs. X, the proposed plaintiff."

In response to question 1:

From the facts no reason is apparent why 'A' may not represent Mrs. X in the proposed proceeding. That being so, there appears no reason why 'B' should not represent Mrs. X in the proceeding. If for any reason, however, 'A' is disqualified from representing Mrs. X another situation is presented. See Advisory Opinion No. 88, Vol. 1, Adv. Op. p. 156, in which a somewhat similar relationship was disapproved of.

To question 2:

If, as indicated in the response to Question 1, no reason exists why 'A' should not represent Mrs. X, there is no reason why 'A' could not assist 'B'.

To question 3:

From the limited facts stated in the inquiry as to the matters involved in the divorce suit, the answer to this question is not obvious. If the divorce proceedings involved the conduct of Mr. X with Mrs. Y and information with reference thereto was received by 'A' as a result of his representation of Mrs. X, 'A' could not represent Mrs. Y in the defense of the alienation suit. See Rule 8 of Professional Conduct and Advisory Opinion No. 91, (Vol. 1, Adv. Op. p. 161) and Advisory Opinion No. 56, (Vol. 1, Adv. Op. p. 109).

In all events, it appears that 'A' is involved in the situation to such an extent that his defense of the alienation suit would not be seemly. Paraphrasing somewhat the language of advisory opinion No. 73 (Vol. 1, Adv. Op. p. 137), it is the duty of a member of the bar not only to avoid all impropriety, but also to avoid the appearance of impropriety and (Rule 31) to strive, at all times, to uphold the honor and to maintain the dignity of the profession. Generally speaking, a member of the bar should refrain from creating a condition, regardless of express prohibition, which might tend to bring reproach upon the profession. For obvious reasons the acceptance of employment from Mrs. X under the conditions presented would so tend. Confidence with reference to certain phases, if not as to all, of the situation had been reposed by Mrs. X in 'A'. As stated in opinion No. 83 of the Committee on Professional Ethics and Grievances of the American Bar Association, personal sacrifice of financial reward in such a case adds to professional honor and dignity and elevates the profession in public esteem; it marks clear the distinction between a trade or business and a profession.