May a lawyer who is the target of a grand jury investigation represent the former employees and clients subpoenaed as witnesses against him, recommend their counsel, or pay that counsel's fee?

Plain-English summary

An attorney was the subject of a grand jury investigation centered on his law practice, and some of his former employees and clients had been subpoenaed as witnesses. After being told of their right to counsel, they contacted the attorney under investigation. He asked whether he could represent them, whether he could recommend a particular lawyer, whether he could pay that lawyer's fee, and whether the recommended lawyer could share with him information learned in the representation.

The Committee treated this as a conflict personal to the attorney, threatening the basic duty to serve a client with unquestioned fidelity, because the witnesses' interest in cooperating fully with the grand jury conflicted directly with the attorney's interest in avoiding embarrassing evidence. Citing DR 5-101(A) and EC 5-1 and EC 5-2, it concluded the attorney could not represent the prospective witnesses against him, that their consent would not remove the objection, and that an appearance of impropriety would be present in any event, with the matter also bearing on the public interest and the administration of justice.

Turning to what the attorney could do, the Committee applied DR 7-104(A)(2), which permits advising an unrepresented person whose interests may conflict only to secure counsel. Drawing on ABA Opinion 245, it held that even recommending several attorneys would raise a suspicion of collusion, so the advice should not go beyond a bare recommendation to obtain representation. It was particularly important, where the conflict is personal to the attorney, that he retain no control or interest, financial or otherwise, in the selection of counsel.

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 personal-interest conflict it applied (DR 5-101(A)) is now treated under RPC 1.7(a)(2), and the limits on advising an unrepresented person (DR 7-104(A)(2)) under RPC 4.3. Treat this page as historical context, not current guidance.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 being investigated represent the witnesses called against him?

A: Under this opinion, no. The Committee held the lawyer's personal interest barred the representation, and that the witnesses' consent could not cure it.

Q: Can the investigated lawyer pick or pay for the witnesses' lawyer?

A: No. The Committee held he could not retain any control or financial interest in the selection of counsel, given the conflict personal to him.

Q: What may the investigated lawyer tell the witnesses?

A: Only a bare recommendation that they obtain their own counsel; even naming several attorneys could raise a suspicion of collusion the opinion said should be avoided.

Background and rules framework

The opinion applied the personal-interest conflict rule (DR 5-101(A), EC 5-1, EC 5-2) and the limit on advising unrepresented persons (DR 7-104(A)(2)), against the appearance-of-impropriety principle. In current New Jersey terms, these map to RPC 1.7(a)(2) and RPC 4.3.

Citations and references

Rules of Professional Conduct:

• DR 5-101(A), EC 5-1, EC 5-2 (personal-interest conflict), as in effect 1974; now MR 1.7 / NJ RPC 1.7
• DR 7-104(A)(2) (advising an unrepresented person to secure counsel); now MR 4.3 / NJ RPC 4.3

Cases:

• Schear v. Elizabeth, 41 N.J. 321 (1964), conflict affecting the public interest is barred
• Ahto v. Weaver, 39 N.J. 418 (1963)
• In re Abrams, 56 N.J. 271 (1970)

Other opinions cited:

• ABA Committee on Professional Ethics and Grievances, Opinion 16 (1929); Opinion 245 (1942)
• NJ ACPE Opinion 4, 86 N.J.L.J. 357 (1963); Opinion 7, 86 N.J.L.J. 405 (1963)

See also

• NJ ACPE Op. 277: A Municipal Legal Assistant's Associate Against the Municipality
• NJ ACPE Op. 282: Suing the Spouse of a Current Client in an Unrelated Case

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp278-1.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. 121, February 21, 1974

OPINION 278

Conflict of Interest Attorney Under Investigation Representing Prospective Witnesses

An attorney is the subject of a grand jury investigation which centers around certain conduct in his practice of law. Some of his former employees and clients have been subpoenaed to appear as witnesses. After being advised of their right to be represented by counsel, they contacted the attorney under investigation.

We are asked the following questions:

1. Is he permitted to represent them?

2. If there is a conflict, is he permitted to recommend a particular lawyer?

3. If he is permitted to recommend a particular lawyer, is he permitted to pay that attorney's fee?

4. Is the attorney who is recommended permitted to communicate information which he learns in the representation of the employee or the client to the attorney who is paying the fee?

The present inquiry involves a conflict which is personal to the attorney in question, and as such threatens one of the very basic precepts of the attorney-client relationship - the ability to serve the client's interest with unquestioned fidelity. The witnesses' possible self-interest in cooperating fully, honestly, and openly before the grand jury conflicts directly with the not too unnatural desire of the attorney in such circumstances to avoid the presentation of any evidence which would be embarrassing.

The Code of Professional Responsibility, DR 5-101(A) contemplates such conflict and provides:

Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.

The ethical considerations for DR 5-101(A) are found in Canon 5 of the Code of Professional Responsibility of the American Bar Association which states, EC 5-1:

The professional judgment of a lawyer shall be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Neither his personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute his loyalty to his client.

The Code of Professional Responsibility, EC 5-2, continues as follows:

A lawyer should not accept proffered employment if his personal interest or desires will, or there is a reasonable probability that they will, affect adversely the advice to be given or services to be rendered the prospective client.

It is clear from the foregoing that the attorney in question cannot possibly represent prospective witnesses against him, whether they be former employees, clients, or others possessing information relevant to the investigation. See Drinker, Legal Ethics 120 (1953). Such representation would do violence to the entire concept of the attorney client relationship. Furthermore, the consent of such witnesses would not remove the ethical objections. The appearance of impropriety would certainly be present were such a representation permitted. See A.B.A. Comm. on Professional Ethics and Grievances, Opinion 16 (1929).

In commenting upon former Canon 6 of the Canons of Professional Ethics (predecessor to DR 5-101(A), supra), Drinker in his Legal Ethics (1953) notes at p. 105:

even where all parties agree, the appearance of a lawyer on both sides of the same controversy, particularly in cases of some notoriety, will often give an impression to the public which is most unfortunate for the reputation of the bar, and which of itself should be decisive.

Aside from the appearance of impropriety, the matter has the potential for adversely affecting the administration of justice. Thus such representation directly involves the public interest, and is particularly improper and undesirable. N.J. Advisory Committee on Professional Ethics, Opinion 4, 86 N.J.L.J. 357 (1963). The Supreme Court of New Jersey in Schear v. Elizabeth, 41 N.J. 321, 329 (1964), quoting Ahto v. Weaver, 39 N.J. 418, 431 (1963), noted that such representation is absolutely barred where a conflict affecting the public interest is involved. In the matter sub judice the conflicting interest the attorney would accommodate is his own. Therefore, the rationale for the rule is even more meaningful.

Once it has been established that the conflict between the lawyer and the prospective witnesses against him cannot be cured by a disclosure of the conflict and the consent of such witnesses, the lawyer's duties and responsibilities are fairly clear. In this regard, DR 7-104(A) of the Code of Professional Responsibility states:

During the course of his representation of a client a lawyer shall not:

(2) Give advice to a person who is not represented by a lawyer, other than advice to secure counsel if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client.

In interpreting the nature and extent of the advice to secure counsel which may be given by a lawyer when a potential for conflict exists, the A.B.A. Comm. on Professional Ethics and Grievances observed in Opinion 245 (1942) that even to recommend several attorneys would raise a suspicion of collusion which should be avoided. Cf. In re Abrams, 56 N.J. 271, 277 (1970).

Accordingly, the giving of advice to retain independent counsel should not go beyond bare recommendation to acquire representation. Such a limitation is particularly important where the conflict of interest is personal to the attorney. N.J. Advisory Committee on Professional Ethics, Opinion 7, 86 N.J.L.J. 405 (1963). In such a factual setting not only would there be an appearance of impropriety, but there would exist a very real and direct conflict of interest were the attorney under investigation to retain any control or interest, financial or otherwise, in the selection of counsel. Such a practice would not only do a grave disservice to the former employees and clients, but would seriously undermine the broader goals of promoting confidence in our judicial system and in the legal profession.