If a lawyer's office associate becomes a part-time municipal legal assistant, may the lawyer still finish a workers' compensation claim his office is pursuing against that municipality, even with the city's consent?

Plain-English summary

The inquiring attorney, X, represented a petitioner in a workmen's compensation claim against the City of Y. An office associate of X had handled the claim at the pretrial stage and then became a part-time legal assistant for the City of Y, after which the associate could no longer appear in compensation court when the city was the respondent. X asked whether he could conclude the matter himself with the city's consent, or had to turn the file over to an unaffiliated attorney.

The Committee analyzed the question under DR 5-105, which governs declining employment that may impair a lawyer's independent judgment because of another client's interests. It was clear, the Committee said, that the part-time legal assistant could not represent the employee against the city he also served, and equally clear that when one lawyer is disqualified by conflict, no associate or partner may represent the client, citing DR 5-105(D) and Opinions 161 and 202.

The Committee acknowledged that ordinarily a lawyer may represent conflicting interests with the express consent of all parties after full disclosure, but held that the city's consent was not available here because the public interest was involved, quoting Opinion 69. It concluded that the inquiring attorney could not ethically conclude the matter himself and had to withdraw from representing the client in the claim against the respondent city.

Currency note

This opinion was issued in 1974, 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 conflict and imputation rules it applied (DR 5-105 and DR 5-105(D)) are now treated under RPC 1.7, RPC 1.10, and, for the government side, 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 Treat this page as historical context, not current guidance.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: Can a lawyer keep a case against a city after his associate joins the city's legal office?

A: Under this opinion, no. The associate's disqualification is imputed to the whole office, so the lawyer had to withdraw from the claim against the city.

Q: Could the city's consent let the lawyer finish the case?

A: No. The Committee held consent was unavailable because the public interest was involved, following Opinion 69.

Q: Why does one lawyer's conflict reach his partners and associates?

A: Under DR 5-105(D), if a lawyer must decline or withdraw from employment because of a conflict, no partner or associate of his firm may accept or continue it.

Background and rules framework

The opinion applied DR 5-105 (refusing employment for conflicting interests) and its imputation provision DR 5-105(D), together with the rule that consent cannot cure a conflict where the public interest is involved. In current New Jersey terms, these map to RPC 1.7, RPC 1.10, and RPC 1.11.

Citations and references

Rules of Professional Conduct:

• DR 5-105 and DR 5-105(D) (conflicting interests; imputation), as in effect 1974; now MR 1.7 / NJ RPC 1.7, MR 1.10 / NJ RPC 1.10, MR 1.11 / NJ RPC 1.11

Other opinions cited:

• NJ ACPE Opinion 4, 86 N.J.L.J. 357 (1963); Opinion 29, 87 N.J.L.J. 106 (1964); Opinion 69, 88 N.J.L.J. 97 (1965); Opinion 161, 92 N.J.L.J. 726 (1969); Opinion 202, 94 N.J.L.J. 309 (1971)

Cases:

• Ahto v. Weaver, 39 N.J. 418 (1963)

See also

• NJ ACPE Op. 278: A Lawyer Under Investigation and the Witnesses Against Him
• NJ ACPE Op. 297: A Development Corporation's Counsel Who is a Prosecutor's Partner
• NJ ACPE Op. 281: Housing Association Counsel Appearing Before Town Boards

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp277-1.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.

97 N.J.L.J. 33, January 17, 1974

OPINION 277

Conflict of Interest Municipal Legal Assistant's Associate Representing Employee Against Municipality

X, the attorney making this inquiry represents a petitioner in a claim pending in the Division of Workmen's Compensation. The respondent is the City of Y. An office associate of X handled the compensation claim at the pretrial stage and shortly thereafter became a part-time legal assistant for the City of Y. We are informed by X that his associate, because of his municipal position, "can no longer appear in Workmen's Compensation Court under any circumstances when the City of Y is the respondent." X asks our Committee if he may conclude the matter himself with the consent of the respondent city or must he turn the file over to an attorney not associated with his office and let him conclude the matter.

The ethical question involved is governed by DR 5-105 of the Disciplinary Rules of the Code of Professional Responsibility of the American Bar Association, as amended, adopted by the Supreme Court of New Jersey on July 7, 1971, effective September 13, 1971. This rule deals with the refusal of employment if the interests of another client may impair the independent professional judgment of a lawyer and encompasses the provisions of the former Canons of Professional Ethics, Canon 6. An analysis of the many conflicting interests arising under the provisions of the old Canon 6 may be found in Drinker, Legal Ethics 104 (1953).

It is clear that the part-time legal assistant associated with X cannot represent the employee claiming compensation against the city he also represents. It is equally clear that if a lawyer is prevented from representing a client because of conflicting interests, then no associate or partner may represent that client. See N.J. Advisory Committee on Professional Ethics, Opinion 161, 92 N.J.L.J. 726 (1969), Opinion 202, 94 N.J.L.J. 309 (1971) and DR 5-105(D).

The Code of Professional Responsibility, DR 5-105(D) referred to above, provides that:

If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment.

Ordinarily, an attorney may represent conflicting interests with the express consent of all parties involved after full disclosure. The inquirer here suggests obtaining the consent of the respondent city to his representation of the employee petitioner but such consent is not available here because the public interest is involved. In our N.J. Advisory Committee on Professional Ethics, Opinion 69, 88 N.J.L.J. 97 (1965), we said:

That portion of Canon 6 permitting representation of conflicting interests by express consent after full disclosure is not available where, as here, the public interest is involved. N.J. Advisory Committee on Professional Ethics, Opinion 4, 86 N.J.L.J. 357, 361 (1963); Opinion 29, 87 N.J.L.J. 106 (1964); Drinker, Legal Ethics (1953) 120; Chief Justice Weintraub in Notice to the Bar", 86 N.J.L.J. 713 (1963); Ahto v. Weaver, 39 N.J. 418, 431 (1963)....

In our opinion the inquiring attorney here cannot ethically conclude the matter himself and must withdraw from representing the client in the claim against the respondent city.