Can a board of education attorney serve as the board's labor negotiator with the teachers' union when his own wife is a full-time, non-tenure teacher employed by that board?

Plain-English summary

The Committee was asked whether a board of education attorney could serve as the board's labor negotiator when his wife was a full-time, non-tenure teacher employed by the board. The personnel committee and other board members sat with the attorney at all negotiation sessions, the board directed his actions and had final approval of all decisions and agreements, and the attorney had no independent authority to resolve issues except through board instruction.

The Committee applied DR 5-101(A), which bars a lawyer from accepting employment, absent client consent after full disclosure, where his own financial, business, property, or personal interests will or reasonably may affect his professional judgment. It concluded that the financial and personal interests of the attorney's wife in the outcome of the negotiations would tend to impair his independent judgment, and that the husband-wife relationship created a possibility of an inadvertent breach of confidence or the wife's receipt of information adverse to the board. Even assuming no actual impairment or breach, it found the appearance of impropriety obvious, invoking the principle that a lawyer must avoid not only evil but the appearance of evil.

The Committee held that the presence of board members at sessions and the board's control over the attorney did not change the analysis, and that the board's consent after full disclosure was not permissible because the public interest was involved, citing Opinion 100. Drawing on its prior spouse-conflict opinions, including Opinion 237 (representing criminal defendants where one's wife is an assistant prosecutor), Opinion 288 (wife of a Deputy Attorney General practicing criminal defense), and Opinion 312 (representing a party where one's wife was the real estate agent), it concluded it would be improper for the inquiring attorney to serve as labor negotiator.

Currency note

This opinion was issued in 1976, 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. Personal-interest conflicts, formerly governed by DR 5-101(A) and the appearance-of-impropriety standard, are now analyzed under RPC 1.7; New Jersey abolished the separate appearance-of-impropriety standard in 2004. 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 board attorney negotiate against the union his spouse belongs to as an employee?

A: Under this opinion, no. The Committee held the wife's interest in the outcome could impair the attorney's judgment and created an appearance of impropriety.

Q: Did the board's oversight of the negotiations cure the problem?

A: No. The Committee held the presence and control of the board did not alter the ethical principles, and board consent could not cure a conflict where the public interest is involved.

Q: Did the wife's lack of tenure matter?

A: The Committee treated her as a full-time employee with a financial and personal interest in the negotiations regardless of tenure status.

Background and rules framework

The opinion applied DR 5-101(A) and the appearance-of-impropriety standard, with the public-interest rule of Opinion 100 and the spouse-conflict line of Opinions 237, 288, and 312, to a board attorney negotiating where his wife is a board employee. In current New Jersey terms, the conflict is governed by RPC 1.7.

Citations and references

Rules of Professional Conduct:

• DR 5-101(A) (declining employment where the lawyer's own interests may affect his judgment), as in effect 1976; now MR 1.7 / NJ RPC 1.7

Cases:

• Ahto v. Weaver, 39 N.J. 418, 431 (1963)

Other opinions cited:

• NJ ACPE Opinion 100, 89 N.J.L.J. 696 (1966); Opinion 237, 95 N.J.L.J. 410 (1972); Opinion 288, 97 N.J.L.J. 766 (1974); Opinion 312, 98 N.J.L.J. 646 (1975); Opinions 168, 170, 277, 4, 29, 54, 65, 67, and 69
• ABA Committee on Professional Ethics and Grievances, Opinion 49 (1931)

See also

• NJ ACPE Op. 492: School Board Attorney Whose Wife Is a Teacher
• NJ ACPE Op. 434: Associates of an Attorney Who Is Spouse of an Assistant Prosecutor
• NJ ACPE Op. 341: Attorney Who Is the Husband of a Real Estate Salesperson

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp346-1.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.

99 N.J.L.J. 714, August 12, 1976

OPINION 346

Conflict of Interest
Husband, School Board Attorney, Labor Negotiator; Wife, Non-Tenure Teacher

We have been asked whether it is unethical for a board of education attorney to serve as labor negotiator for the board when his wife is employed by it as a non-tenure teacher on a full-time basis. We are informed that the personnel committee and other board members sit with the attorney at all negotiation sessions with the bargaining agents of the teachers' association; that the board of education directs the attorney's actions with reference to negotiations and has final approval on all decisions and agreements reached with the teachers' association; and that the attorney has no independent authority to resolve any issues on his own except through board instruction.

DR 5-101(A) requires a lawyer to refuse employment if his personal interests may impair his independent professional judgment. The rule as follows:

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.

We believe that the financial and personal interests of the attorney's wife in the outcome of the negotiations would impair or tend to impair his independent professional judgment. We also believe that the close relationship of husband and wife would create the possibility of an inadvertent breach of confidence or receipt of information by the attorney's wife that might be adverse to the interests of the board. Assuming, however, that the inquirer would neither experience impairment of Judgment nor breach a confidence nor impart information adverse to his client, the appearance of impropriety is obvious. We have frequently said an attorney should not only avoid all impropriety, but should likewise avoid the appearance of impropriety. The ABA Comm. on Professional Ethics, Grievances, Opinion 49 (1931 used to following language to express the principle involved:

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.

See also N.J. Advisory Committee on Professional Ethics, Opinions 168, 93 N.J.L.J. 7 (1970), and 170, 93 N.J.L.J. 18 (1970).

The presence of the personnel committee and other board members at negotiating sessions and the fact that the attorney's actions are subject to direction, approval and instruction from the board do not alter the application of the ethical principles involved. And the consent of the board to such representation, after full disclosure, is not permissible because the public interest is involved. In N.J. Advisory Committee on Professional Ethics, Opinion 100, 89 N.J.L.J. 696 (1966), we said:

In such circumstances the public interest is involved and an attorney may not represent conflicting interests even with the consent of all concerned after full disclosure. Drinker, Legal Ethics 120 (1953); Chief Justice Weintraub in "Notice to the Bar," 86 N.J.L.J. 713 (1963); Ahto v. Weaver, 39 NJ. 418, 431 (1963); 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); Opinion 54, 87 N.J.L.J. 689 (1964); Opinion 65, 87 N.J.L.J. 810 (1964); Opinion 67, 88 N.J.L.J. 81 (1965); and Opinion 69, 88 N.J.L.J. 97 (1965). See also N.J. Advisory Committee on Professional Ethics, Opinion 277, 97 N.J.L.J. 33 (1974).

The conflict, or potential conflict, of interest created by the husband-wife relationship has been considered in several of our prior opinions. In Opinion 237, 95 N.J.L.J. 410 (1972), we held that the representation of defendants in criminal matters in a county in which one's wife is assistant prosecutor would be improper in that the relationship of the attorneys would place an undue, and perhaps impossible, burden upon each attorney's duty to guard the confidences of his clients.

and that

questions would also arise under DR 5-101 requiring an attorney to refuse employment where his personal interests may impair his professional judgment.

In Opinion 288, 97 N.J.L.J. 766 (1974), we held that the wife of a Deputy Attorney General assigned to the Division of Criminal Justice should not be permitted to practice criminal defense law in New Jersey while her husband was so assigned. We believed there was the risk of "disclosure of clients' confidences," that "the appearance of conflict" was present, and "the public would suspect that the attorney would receive preferential treatment and might use her influence for private gain." In Opinion 312, 98 N.J.L.J. 646 (1975), we held that it would be unethical for an attorney to represent any party to a real estate transaction where his wife had been the listing or selling agent. We said

there is all inherent conflict present since it is to the wife's interest to have the transaction completed and the broker's commission paid ... and circumstances might arise that would persuade the attorney that the transaction should not be completed.

It is our opinion that under the circumstances presented it would be improper for the inquiring attorney to serve as labor negotiator.