Can a lawyer practice in the criminal and juvenile courts where his mother works as secretary to the county's Chief Probation Officer?

Plain-English summary

The inquiry asked whether it is ethical for an attorney to represent clients in the County Court, Law Division (Criminal), or the Juvenile and Domestic Relations Court when his mother is employed as secretary to the Chief Probation Officer of the county. The affidavits stated that no information unavailable to any practicing attorney had ever been requested by or given to the attorney by his mother, that her employment preceded his admission to the bar, and that there was no blood relationship between the judge and the attorney or his mother.

The Committee distinguished cases on practicing before a judge who is a relative and cases like Kremer v. City of Plainfield (where representing a private client before a board on which the attorney's uncle sat was held unethical). Here, it reasoned, the only possibility of improper advantage was collateral, and would require assuming unethical conduct by the attorney or corrupt conduct by his mother in requesting or delivering confidential information, which should not be assumed. While recognizing that an attorney should avoid even the appearance of impropriety, the Committee concluded that, in the absence of actual misconduct (which could be dealt with by established procedure if discovered), a sufficient appearance of impropriety did not exist to classify the attorney's proposed practice as unethical.

Currency note

This opinion was issued in January 1970, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), so the Committee was applying the Canons of Professional Ethics and its own prior opinions. It also predates the 1984 Rules of Professional Conduct and all later revisions. The conflict and appearance-of-impropriety principles it applied are now treated under RPC 1.7. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Does a relative working in a court department disqualify a lawyer from that court?

A: Not by itself. The Committee held that mere employment of a close relative in such a department does not create enough appearance of impropriety to bar the lawyer, absent actual misconduct.

Q: How is this different from a relative sitting on a board the lawyer appears before?

A: The Committee distinguished Kremer v. City of Plainfield and Opinion 136; here the relative was support staff with no decision-making role, and any advantage would be collateral and would require assuming misconduct.

Background and rules framework

The opinion applied the appearance-of-impropriety principle, distinguishing a relative who decides matters (a board member or judge) from a relative employed as support staff in a court department. In current New Jersey terms the analysis falls under RPC 1.7.

Citations and references

Cases:

• Kremer v. City of Plainfield, 101 N.J. Super. 364 (Law Div. 1968), relative on a quasi-judicial body

Court rules:

• R. 1:12-1(a)-(b); Canons of Judicial Ethics, Canon 13 (practice before a related judge)

Other opinions cited:

• NJ ACPE Opinion 136, 91 N.J.L.J. 749 (1968); Opinion 8, 86 N.J.L.J. 718 (1963)
• ABA Committee on Professional Ethics and Grievances, Opinion 49 (1931)

See also

• NJ ACPE Op. 186: Zoning-Board Counsel Whose Partner Sits on the Governing Body
• NJ ACPE Op. 201: The Father and Former Partner of an Assistant Prosecutor

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp171-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

93 N.J.L.J. 19, January 8, 1970

OPINION 171

Conflict of Interest - Defense Attorney Relative in Probation Department

Inquiry is made as to whether it is ethical for an attorney to represent clients in the County Court, Law Division (Criminal), or the Juvenile and Domestic Relations Court when his mother is employed as secretary to the Chief Probation Officer of the county.

Affidavits submitted with the inquiry over that at no time has any information not available to any practicing attorney been requested by the attorney in question or been given to him by his mother. Her employment in such capacity preceded his admission to the bar. There is no blood relationship between the judge and the attorney or the attorney's mother. The issue involved is distinguishable from cases in which the propriety of an attorney practicing before a judge, who is a relative, is in question. Rules Governing the Courts of the State of New Jersey, 1:12-1 (a) and (b); Canons of Judicial Ethics, Canon 13.

It is also distinguishable from that created when an attorney represents a private client before a quasi-judicial body, such as a board of adjustment, of which one of the members is the attorney's uncle. This was held to be unethical without proof of corruption in Kremer v. City of Plainfield, 101 N.J. Super. 364 (Law Div. 1968), citing cases involving relatives of members of municipal governing bodies or boards. See also N.J. Advisory Committee on Professional Ethics, Opinion 136, 91 N.J.L.J. 749 (1968). In the instant case the only possibility of improper advantage is collateral, and unethical conduct of the attorney or corrupt conduct of his mother, respectively, in requesting or delivering confidential information would have to be assumed. Such conduct should not be assumed.

We are aware that an attorney should not only avoid all impropriety, but should likewise avoid the appearance of impropriety. N.J. Advisory Committee on Professional Ethics, Opinion 8, 86 N.J.L.J. 718 (1963). Also, it is realized if the profession is to occupy that position in public esteem which will enable it to be of the greatest usefulness, it must avoid not only all evil but must likewise avoid the appearance of evil A.B.A. Comm. on Professional Ethics and Grievances, Opinion 49 (1931).

Thus, the issue emerges as to whether mere employment of a close relative in a governmental department, which maintains confidential records for the benefit of the court, is sufficient to prohibit an attorney from practicing before such court on the basis of improper appearance alone. We are of the opinion that in the absence of actual misconduct, which could be dealt with by established procedure when discovered, sufficient appearance of impropriety does not exist to classify the attorney's proposed practice as unethical.