May a firm represent a local P.B.A. (police union) while it also represents defendants on police complaints and uses police officers as witnesses in other matters?

Plain-English summary

A firm was asked by the Patrolmen's Benevolent Association of the City of X to represent the association, which would involve advising it and appearing on its behalf before the municipal council. The same firm represented defendants in municipal court on complaints made by the city's police officers, represented complainants in that court who at times used police officers as witnesses, and represented police officers of the city on workers' compensation and negligence claims. The inquiry asked whether retention by the P.B.A. would create a conflict of interest or breach of ethics under Canon 6.

The Committee noted what the P.B.A. is and how it operates through local branches, observing that the local branch's attorney commonly appears for members on charges and complaints against police officers, a facet the inquirer passed over by saying an officer is free to retain counsel of his own choosing. The real ethical problem, the Committee said, arose once the attorney representing the P.B.A. and its members also appeared in court representing defendants on complaints made by a police officer, or in matters where a police officer was a witness for the complainant, because some would always believe that trial success had been achieved by unfair help from the police officer and the P.B.A.

The Committee said the problem was not solely within Canon 6. Drawing on its Opinions 68, 85, and 22 and on Canon 29 and the Preamble to the Canons, it invoked the basic principle that the appearance of a complete absence of improper influence is as important as its actual absence. It concluded that the contemplated representation was improper and should be avoided, and that this applied to law partners and associates.

Currency note

This opinion was issued in July 1967, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), and well before the 1984 Rules of Professional Conduct and all later revisions. It applied Canon 6 (conflicting interests) and Canon 29, together with the appearance-of-impropriety principle then central to the Canons. These subjects are now treated under RPC 1.7 (concurrent conflicts of interest) and RPC 1.10 (imputation of conflicts within a firm). Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement mentioned here.

Common questions

Q: Could the firm take the P.B.A. as a client?

A: No. The Committee concluded the contemplated P.B.A. representation was improper and should be avoided, given the firm's other appearances against and alongside the same city's police officers.

Q: Why was the firm's other work the problem?

A: Because the firm represented defendants on police complaints and used officers as witnesses for complainants, representing the police union too would lead some to believe that trial success came from unfair help from the officers and the P.B.A.

Q: Did the bar reach the rest of the firm?

A: Yes. The Committee said the conclusion applied to the firm's law partners and associates, citing its Opinion 43.

Background and rules framework

The opinion rests on the appearance-of-impropriety principle that ran through the Canons of Professional Ethics (Canon 6 on conflicting interests and Canon 29 on the dignity of the profession), holding that the appearance of improper influence is as important as its actual absence. In current New Jersey terms, the simultaneous-representation problem maps to RPC 1.7 (concurrent conflicts), and the extension to the rest of the firm maps to RPC 1.10 (imputation).

Citations and references

Cases:

• N.J. State Patrolmen's Benevolent Association v. Patrolmen's Benevolent Association of West New York, 113 N.J. Eq. 295 (Ch. 1933): the nature and structure of the P.B.A.

Other authorities:

• Canons of Professional Ethics, Canon 6, Canon 29, and the Preamble
• A.B.A. Comm. on Professional Ethics and Grievances, Opinion 104 (1934)

Other opinions cited:

• NJ ACPE Opinions 68 (88 N.J.L.J. 91), 85 (88 N.J.L.J. 631), 22 (87 N.J.L.J. 13), and 43 (87 N.J.L.J. 265): appearance of impropriety and extension to partners and associates

See also

• NJ ACPE Op. 162: Assistant Prosecutor Suing Local Police
• NJ ACPE Op. 117: Borough Attorney Advising the Planning Board

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp113-1.html

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

90 N.J.L.J. 473
July 20, 1967

OPINION 113

P.B.A. Attorney

An inquirer states the Patrolmen's Benevolent Association of the City of X has requested his firm to represent the association. This representation would involve giving legal advice to the association and appearing on its behalf before the municipal council. No further information is given by the inquirer as to the duties and responsibilities of the representation to the association or to its members. Negatively, it is stated "Should any police officer be charged with a breach of duty by the city manager and face a departmental hearing, or should a police officer be charged with a criminal violation, he is at liberty to retain counsel of his own choosing." Information is furnished that this firm represents defendants in the municipal court on complaints made by police officers of the city; it also represents complainants in the same court and on occasion uses police officers as witnesses on behalf of said complainants; it also represents police officers of the same city on workmen's compensation and negligence claims.

The question posed is whether there would be a conflict of interest or breach of ethics as prohibited by the Canons of Professional Ethics, Canon 6, if the firm were retained by the P.B.A.

At the outset, we are not unmindful of what the New Jersey State Patrolmen's Benevolent Association, Inc. is, nor of its operation throughout the State under local branches. N.J. State Patrolmen's Benevolent Association v. Patrolmen's Benevolent Association of West New York et al., 113 N.J. Eq. 295 (Ch. 1933). The membership is composed of regularly appointed full-time patrolmen and, upon admission to the local branch, each member thereby becomes a member of the state association. We are also cognizant of the fact that generally the attorney for a local branch of the P.B.A., in addition to representing the organization, appears for its members on charges and complaints made against the police officers. This facet of representation seems not to have been mentioned by the inquirer, or passed over lightly with the statement that the police officer is at liberty to retain counsel of his own choosing. Surely this statement permits the choosing and retaining of the attorney of the local branch of the P.B.A. who has never disqualified himself.

The real ethical problem is created once the attorney representing the P.B.A. and its members, directly or indirectly, appears in court representing either defendants on complaints made by the police officer, or complaints where the police officer is called as a witness for the complainant. In the minds of some, and outspoken in others, will always be the belief that success in the trial was achieved by unfair help and assistance from the police officer and the P.B.A.

It is our opinion that this is not particularly or solely within the purview of Canon 6, but, as we previously stated, Opinion 68, 88 N.J.L.J. 91 (1965):

There appears to be no Canon of Professional Ethics which specifically provides the answer to this inquiry, nor any language in any canon which expressly precludes the inquirer from pursuing the course of action contemplated. But, as the Preamble to the Canons states, "No code or set of rules can be framed, which will particularize all the duties of the lawyer in the varying phases of litigation or in all the relations of professional life."

In Opinion 85, 88 N.J.L.J. 631 (1965), we concluded that it was improper to violate the spirit, if not the letter, of the canons, and we set forth the expressed consideration applicable in the opening passages of Drinker, Legal Ethics (1953).

Again, in Opinion 22, 87 N.J.L.J. 13 (1964), we stated:

The duty of the lawyer is expressly stated in Canon 29:

He should strive at all times to uphold the honor and to maintain the dignity of the profession and to improve not only the law but the administration of justice.

Lawyers should also conduct themselves in such a way as not to impair the confidence of the community in the administration of justice and government.

See also A.B.A. Comm. on Professional Ethics and Grievances, Opinion 104 (1934).

Applicable here is the basic principle that appearance of complete absence of improper influence is as important as the actual absence thereof.

It is our opinion that the representations contemplated is improper and should be avoided. This applies to law partners and associates. Opinion 43, 87 N.J.L.J. 265 (1964).