Does a conflict that bars a firm from practicing criminal law in a county also bar a solo lawyer who tries the firm's cases in its name under a fee arrangement?

Plain-English summary

This inquiry built on Opinion 191, in which the Committee had held that a law firm should not practice criminal law in a county where the son of one partner and the brother of another was a full-time prosecutor who had formerly been a partner in the firm. The present inquirer described himself as a single practitioner who prepared and tried the personal injury cases for that firm under an agreement that also had the firm pay costs and required the cases to be handled in the firm's name. He asked whether the same disabilities attached to him as to the firm.

The Committee answered that they obviously did. It reiterated that positions of conflict are pertinent not only to the individual attorney but to his partners and associates as well, citing Opinions 74, 177, 214, and 221. Because the inquirer was practicing under the firm's name, which the Committee said was permissible at all (if questionable) only because he was an associate of the firm, he should not engage in the practice of law in cases where the firm itself should not.

Currency note

This opinion was issued in 1973, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. The imputation principle it applied is now treated under RPC 1.10, with the underlying conflict under RPC 1.7 and, for the prosecutor relationship, RPC 1.11. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does a firm's conflict reach a solo lawyer who tries its cases in its name?

A: Under this opinion, yes; the Committee held the same disabilities attached to the inquirer because he practiced as an associate of the firm.

Q: Why did practicing in the firm's name matter?

A: The Committee said practicing under the firm's name was permissible at all only because the inquirer was an associate, so he took on the firm's conflicts along with its name.

Background and rules framework

The opinion applied the rule that a lawyer's conflict extends to his partners and associates, drawn from Opinion 191 and related opinions. In current New Jersey terms, the imputation rule is RPC 1.10, with the underlying conflict under RPC 1.7 and RPC 1.11.

Citations and references

Rules of Professional Conduct:

• Imputation of conflicts to partners and associates, as in effect 1973; now MR 1.10 / NJ RPC 1.10, with the underlying conflict under MR 1.7 / NJ RPC 1.7 and MR 1.11 / NJ RPC 1.11

Other opinions cited:

• NJ ACPE Opinion 74, 88 N.J.L.J. 357 (1965); Opinion 105, 90 N.J.L.J. 53 (1967); Opinion 177, 93 N.J.L.J. 241 (1970); Opinion 191, 94 N.J.L.J. 33 (1971); Opinion 214, 94 N.J.L.J. 600 (1971); Opinion 221, 94 N.J.L.J. 1002 (1971); Opinion 259, 96 N.J.L.J. 754 (1973)

See also

• NJ ACPE Op. 277: A Municipal Legal Assistant's Associate Against the Municipality
• NJ ACPE Op. 288: A Deputy Attorney General's Spouse Practicing Criminal Defense
• NJ ACPE Op. 297: A Development Corporation's Counsel Who is a Prosecutor's Partner

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp267-1.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.

96 N.J.L.J. 1262, November 1, 1973

OPINION 267

Conflict of Interest Single Practitioner Associate of Full-Time Prosecutor's Former Firm

This inquiry relates to the subject matter of the N.J. Advisory Committee on Professional Ethics, Opinion 191, 94 N.J.L.J. 33 (1971). There we held that a law firm should not practice criminal law in a county where the son of one of the partners and the brother of another was a full-time prosecutor and had been a former partner of the firm.

The present inquiry is from an attorney who terms himself a single practitioner but who states he prepares and tries the personal injury cases for the above-referenced firm pursuant to an agreement which also calls for the firm to pay costs and that the cases all be handled in the firm's name. The inquiry is whether the same disabilities attach to the inquirer as to the firm. The answer is that they obviously do.

Time and again we have stressed that positions of conflict are pertinent not only to the practice of the individual attorney involved, but to his partners and associates as well, for example, N.J. Advisory Committee on Professional Ethics, Opinion 74, 88 N.J.L.J. 357 (1965); Opinion 177, 93 N.J.L.J. 241 (1970); Opinion 214, 94 N.J.L.J. 600 (1971); Opinion 221, 94 N.J.L.J. 1002 (1971). This inquirer is practicing law under the name of the firm in question. If this is proper at all (which is questionable, see Advisory Committee on Professional Ethics, Opinion 105, 90 N.J.L.J. 53 (1967); and Opinion 259, 96 N.J.L.J. 754 (1973)), it is proper only because the inquirer is an associate of the firm in question. As such he should not engage in the practice of law in cases where the firm should not.