Can a lawyer known as a PBA attorney represent an individual PBA member in a matter where another PBA member is expected to testify?

Plain-English summary

In the original Opinion 320 (1975), the Committee read State v. Galati, 64 N.J. 572 (1974), as applying to civil as well as criminal matters. In this supplement, the Committee concluded it had interpreted Galati too broadly and limited its opinion to criminal, quasi-criminal, and disciplinary matters.

Quoting Galati, the Committee restated the concern: when the PBA's lawyer represents a private cause in which a member of that same PBA is destined to testify, there is bound to be public suspicion that the PBA witness will shade his testimony to accommodate the lawyer who, outside court, supports the private and organizational interests of the PBA witness.

As modified, the holding is that a lawyer known as a PBA attorney, whether regularly retained or engaged case by case, may not represent a PBA member in any criminal, quasi-criminal, or disciplinary matter in which another PBA member may be called to testify. The Committee stressed the impropriety exists only where the attorney is so associated with the PBA in the public's mind as to arouse suspicion. The rule does not stop a PBA member from retaining other counsel not so associated with the PBA, and it does not prevent the PBA's attorney from continuing to represent the PBA itself in any matter, whether or not a member will testify.

Currency note

This supplement was issued in 1977, 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 appearance-of-impropriety concern it applied is now treated under RPC 1.7. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.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: What did this supplement change about Opinion 320?

A: It limited the original holding. The Committee decided it had read State v. Galati too broadly and confined the bar to criminal, quasi-criminal, and disciplinary matters rather than extending it to civil matters.

Q: When is a PBA attorney barred from representing a member?

A: When the attorney is so associated with the PBA in the public's mind as to arouse suspicion, and represents a member in a criminal, quasi-criminal, or disciplinary matter in which another PBA member may testify.

Q: Can the PBA's lawyer still represent the PBA itself?

A: Yes. The supplement states the rule does not prevent continuing representation of the PBA by its attorney in any matter, whether or not a member will be called to testify.

Background and rules framework

The opinion rests on the appearance-of-impropriety principle as applied by the New Jersey Supreme Court in State v. Galati, 64 N.J. 572 (1974), to a lawyer closely identified with an organization whose member is a witness. In current New Jersey terms, this conflict analysis is treated under RPC 1.7 (concurrent conflicts of interest).

Citations and references

Rules of Professional Conduct:

• Appearance-of-impropriety principle, as in effect 1977; conflict analysis now under MR 1.7 / NJ RPC 1.7

Cases:

• State v. Galati, 64 N.J. 572 (1974), lawyer identified with the PBA whose member is a witness

See also

• NJ ACPE Op. 385: A PBA Attorney Who is Also the School Board Attorney
• NJ ACPE Op. 628: A Local PBA Attorney Representing the Zoning Board in the Same Municipality
• NJ ACPE Op. 404: A Former Attorney for Police Officers Representing Others in Municipal Court

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp320-1.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.

100 N.J.L.J. 1126 (1977)

OPINION 320 (Supplement)

PBA Attorney's Private Practice Where Police Member is Witness

In Opinion 320, 98 N.J.L.J. 857 (1975), this Committee concluded that State v. Galati, 64 N.J. 572 (1974), applied to civil as well as criminal matters. We have now determined that we have interpreted Galati too broadly and that our opinion should be limited to criminal, quasi-criminal and disciplinary matters. In Galati the Court said, at page 576:

So it is that when the PBA's lawyer undertakes the representation of a private cause in which a member of that same PBA is destined to testify (on one side or another) there is bound to occur a public suspicion that the PBA witness will be inclined to palliate or vivify his testimony in order to accommodate the lawyer who, outside the court room, is en rapport with and supportive of the private and organizational interest of the PBA witness.

The conclusion of Galati, as well as our opinion as herein modified, is that an attorney who is known as a PBA attorney, whether regularly retained or on a case by case basis, may not represent a member of the PBA in any criminal quasi-criminal or disciplinary matter in which another member of the PBA may be called upon to testify. The impropriety exists only where the attorney is so associated with the PBA in the public's mind as to arouse suspicion when he represents, an individual member of the PBA in such matters so closely concerned with the public interest. Clearly this does not prevent any member of the PBA from retaining counsel of his own choosing who is not so associated with the PBA, nor does it prevent continuing representation of the PBA by its attorney in any matter whether or not a member of the PBA will be called upon to testify.

Opinion 320 is accordingly modified as set forth in this supplement.