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A LAWYER WHO HAS REPRESENTED A HUSBAND IN CONNECTION WITH HIS ATTEMPT
TO SECURE A DISSOLUTION OF HIS MARRIAGE AND CUSTODY OF HIS CHILDREN
IS DISQUALIFIED TO DEFEND THE WIFE AGAINST A CHARGE OF MANSLAUGHTER,
WHEREIN IT IS CLAIMED THAT SHE KILLED HER HUSBAND IN AN ATTEMPT
TO REGAIN CUSTODY OF THE CHILDREN FROM THE HUSBAND.
CODE AND DISCIPLINARY RULES APPLICABLE
DR 4-101(B) A lawyer shall not knowlingly:
(1) Reveal a confidence or a secret of his client.
EC 4-6:
The obligation of a lawyer to preserve the
confidences and secrets of his client continues after the termination
of his employment.
DR 5-101(B):
A lawyer shall not accept employment...
if he knows or is obvious that he or a lawyer in his firm ought
to be called as a witness ....
DR 5-105(B): A
lawyer shall not continue multiple employment if the exercise of
his independent professional judgment in behalf of a client will
be or is likely to be adversely affected by his representation of
another client ....
EC 9-6:
Every lawyer owes a solemn duty to uphold
the integrity and honor of his profession...to strive to avoid not
only professional impropriety but also the appearance of impropriety.
DISCUSSION
The
inquirer was hired and paid by a husband to prepare a petition for
dissolution of the marriage and for custody of the children. The
petition was never filed. The wife had left the children in the
informal custody of her parents, and the attorney advised the husband
that the grandparents had no right to deprive him of the children.
Accordingly, the husband went to the grandparents' home and took
custody of the children; whereupon, the wife visited the husband's
home and he was killed by gunshot, allegedly inflicted by the wife.
Subsequently, the wife asked the same attorney to defend her in
the manslaughter case. The attorney represented the wife at the
bond setting but now inquires whether he may defend her against
the felony charge. It is clear that the felony charge arose out
of the exact issue concerning which the attorney was representing
the husband. A total defense of the wife might well inquire into
the husband's attitude and state of mind, and might involve the
attorney as a witness on many points including the deceased's state
of mind, attitude, possible intention to commit some illegal act
in connection with the custody issue, etc. At any rate, the lawyer's
duties to the husband regarding confidences did not terminate upon
death of the client-husband. The appearance of impropriety is obvious.
If the wife is convicted, both the public and she might claim that
her fate was sealed because the attorney really represented the
deceased husband. If the wife is acquitted, both the public and
she might feel that her acquittal was at least partly the result
of some confidential or inside information which the attorney had
acquired from the husband. On the grounds of appearances alone,
the attorney should decline the tendered employment by the wife.
73-15
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