OPINION 214
September 1958

CANDOR AND FAIRNESS - WITHHOLDING INFORMATION OF AN AFFIRMATIVE DEFENSE - The lawyer representing a defendant husband in a divorce suit may properly withhold from the court facts constituting the affirmative defense of condonation.

CANDOR AND FAIRNESS - USING AFFIRMATIVE DEFENSES TO INFLUENCE NEGOTIATIONS FOR SETTLEMENT - An attorney may properly use the existence of an affirmative defense to a divorce action in an attempt to favorably influence settlement negotiations.

Canons 19, 29 .

Question

Wife sues husband for divorce on grounds of cruelty.  The parties do not thereafter publicly live together, but during the pendency of the divorce action the attorney for the defendant husband learns of acts of sexual intercourse between the spouses, constituting condonation in law.  The defendant husband does not wish to resist the suit for divorce but does desire his attorney notify wife's attorney of this affirmative defense, to be used as "trading matter" to secure a favorable property settlement for the husband.

1.    Is the husband's attorney bound to disclose the ground of affirmative defense to the court?

2.    May the husband's attorney use the threat of the affirmative defense of condonation in order to secure a more favorable property settlement than his client might otherwise be entitled to receive?

Opinion

The committee is of the unanimous opinion that the questions should be answered in the negative and do not present any violation of the Canons of Ethics.

Condonation is an affirmative defense that must be pleaded and proved in order to be used.  See Crittenden v. Crittenden, 214 S.W. 2d 670 (Tex. Civ. App. 1948).  There is no requirement that a party use such a defense, and it may be waived.  This aspect distinguishes the present situation from that involved in Opinion 33.  Therefore, the attorney for the defendant husband does not breach any duty to the court by failing to disclose information regarding such an affirmative defense.

In the absence of other facts indicating lack of candor to the court, the attorney may use this information in an attempt to favorably influence negotiations for settlement. (7-0.)