Can a legal aid society represent several groups of co-defendants with potentially adverse defenses, and can it cure the conflict by spreading them among its own staff?

Plain-English summary

The board of trustees of a county legal aid society, a nonprofit funded through the Office of Economic Opportunity to provide legal services for indigents, asked a series of questions. Six minors had entered a public school building after hours and vandalized it, with one minor setting it on fire. The board of education sued the six minors and their parents for damages under R.S. 18:14-51, which makes a pupil who injures school property, and his parents, liable for the damage. Four of the six parent-and-child groups sought the society's representation.

The Committee answered each question. If the society undertook the defense of the various groups, it would be representing a conflict of interests, because the defendants could plead inconsistent defenses and testimony from one defendant might assist or prejudice others. Full disclosure to all parties would not permit the society to proceed. Assigning each case to a different member of the society's own legal staff would not solve the problem; the society should allocate the defendants to various lawyers, but not to members of its own legal staff. Assigning some groups to attorneys who were members of the society's board of trustees would also be improper, as a mere subterfuge in conflict with the Committee's determination. The Committee reiterated that what is wrong for a lawyer is wrong for his partner as well. Finally, the Committee said its answers would be the same even if the defendants, denied representation by the society, could not obtain counsel elsewhere because of their indigency.

Currency note

This opinion was issued in April 1968, 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 the Canons of Professional Ethics on conflicting interests and the imputation of one lawyer's disqualification to his partners. These issues are now treated under RPC 1.7 (concurrent conflicts) and RPC 1.10 (imputation), and the rules on legal-services organizations. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a legal aid society defend several co-defendants in the same suit?

A: Not where their defenses could be inconsistent. The Committee held that representing the multiple groups would be a conflict of interests because one defendant's testimony might help or hurt another.

Q: Can the society cure the conflict by assigning each group to a different staff lawyer?

A: No. The Committee said the society should refer the defendants to various outside lawyers, not to members of its own legal staff, and that routing some to trustee-attorneys would be a subterfuge.

Q: Does it change the answer if the defendants cannot afford any other lawyer?

A: No. The Committee said its answers were the same even if denial by the society left the indigent defendants unable to obtain counsel elsewhere.

Background and rules framework

The opinion treats the legal aid society as a single lawyer for conflict purposes: a disqualifying conflict among co-defendants cannot be cured by distributing them within the same staff, because what is forbidden to one lawyer is forbidden to his partners. In current New Jersey terms, the concurrent conflict is analyzed under RPC 1.7 and the imputation of disqualification within a firm or organization under RPC 1.10.

Citations and references

Statutes:

• R.S. 18:14-51 (liability of a pupil and his parents for injury to school property)

See also

• NJ ACPE Op. 127: One Attorney for Both Zoning and Planning Boards
• NJ ACPE Op. 135: Suing an Estate He Previously Represented

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp126-1.html

Original opinion text

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

91 N.J.L.J. 257
April 25, 1968

OPINION 126

Conflict of Interests Legal Aid - Legal Aid Society

An inquiry has been made by the board of trustees of a county legal aid society and particularly by the chairman of the case committee of that society requesting an advisory opinion. The society is a nonprofit corporation funded through the Office of Economic Opportunity, the anti-poverty agency of the Federal Government, to provide legal services for indigents. The board of trustees (comprised of lawyers and non-lawyers) determines the policy of the organization within the guidelines of the Office of Economic Opportunity. The board of trustees has recommended that there be submitted to this Committee for its consideration several questions of professional ethics which have arisen out of the factual situation hereinafter described, and the society indicates that it is requesting the determination of these questions so it may be used by its organization in determining its policy in this case and in similar ones which may arise in the future.

We are told that this matter pertains to six minors who entered a public school building without authority after school hours and ransacked, defiled and vandalized the classrooms. Apparently, one of the minors applied a lighted match to the furnishings and, as a result, the school building was set on fire.

We were also told that the board of education of the city thereafter instituted legal proceedings in order to recover damages to the building. The defendants named are the six minors and their parents. Four of the six parents and their children named as defendants now seek the representation of the legal aid society. The board of education bases its damage claim on R.S. 18:14-51, which states that any pupil who shall cut, deface, or otherwise injure any schoolhouse, furniture, fences, outbuildings, or other property of the school district shall be liable to suspension and punishment, and his parents or guardian shall be liable for damages to the amount of the injury to be collected by the board of education in any court having jurisdiction, together with the costs of the action.

The legal aid society makes the following inquiries:

1. If the society undertakes the defense of the various groups of defendants, would it be representing a conflict of interests? It is our opinion it would. We can see how there could be inconsistent defenses pleaded by each of the defendants and we could even anticipate that testimony from one defendant might be given that would assist or prejudice one or more of the other defendants. That, in itself, would require a determination that there is a conflict of interests if the same person or persons were to assume the defense of all.

2. There being a conflict of interests for the society to represent the four groups of defendants, would full disclosure to all parties permit the society to proceed with their defense? The answer is "no."

3. There being a conflict of interests for one member of the legal staff of the society to represent all the groups of defendants, would the society be able to undertake their defense if it were to assign each of the cases to a different member of its legal staff? The answer here is "no," it being our opinion that the society should allocate these various defendants to various lawyers, but not to members of its own legal staff.

4. There being a conflict of interests, would it be permissible for the society to represent one group of defendants and to assign the other groups to attorneys who are members of the board of trustees of the society? Here again the answer is "no," because this would be merely a subterfuge and in conflict with our determination as above stated.

5. We have ruled on this question of partners many times before, and have stated that what is wrong for a lawyer, necessarily is wrong for his partner as well.

6. Would our answers be the same or different if it were determined that the defendants were denied representation by the society and therefore were unable to obtain counsel elsewhere because of their indigency? While technically it is not for this Committee to make such a determination, our answers are still the same.