Can a lawyer who serves as a deputy surrogate act as a paid probate-law consultant to other attorneys, even if he does not appear in court or associate with them?

Plain-English summary

The inquirer was a deputy surrogate and an attorney who wished to place an announcement in the Lawyers Diary and Manual that he would act as a consultant in probate law only, without acting as associate or appearing in court on probate matters. He cited R. 1:15-1(d), which bars an attorney who is a deputy surrogate from practicing in criminal, quasi-criminal, or penal matters in that county and in the probate division or any estate or trust matter in any court, and Opinion 332, which had allowed lawyers to advertise their availability as consultants in a particular field.

The Committee read the request to assume that a deputy surrogate could consult other lawyers on probate matters so long as he did not appear in court, and held that assumption impermissible. It found that R. 1:15-1(d) was intended to bar any deputy surrogate from engaging in any facet of probate law while in office; serving as a consultant to lawyers handling probate matters in his county, even without a court appearance, creates an obvious appearance of evil. Quoting State v. Galati, it stressed that in matters of ethics the impact on public consciousness is nearly as important as the fact, so quasi-public officers must avoid even the appearance of impropriety.

The Committee added that the proposed conduct might also violate DR 8-101, on a lawyer using his public position to obtain an advantage, reasoning that the inquirer was likely not consulted as a probate expert until he became a deputy surrogate. It held he could not provide the consulting services. Because that disposed of the matter, the Committee found it unnecessary to answer the separate question about placing the announcement, noting only that advertising of legal specialties in approved publications had been addressed in its Opinions 107 and 108.

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. The conflict and public-office concerns, then expressed through R. 1:15-1(d), the appearance-of-impropriety standard, and DR 8-101, are now analyzed under RPC 1.7 and RPC 8.4; New Jersey abolished the separate appearance-of-impropriety standard in 2004, and lawyer advertising rules have since changed substantially. 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 deputy surrogate moonlight as a probate consultant to other lawyers?

A: Under this opinion, no. The Committee held R. 1:15-1(d) bars a deputy surrogate from any facet of probate practice, including consulting, while in office.

Q: Did avoiding court appearances cure the problem?

A: No. The Committee found that consulting lawyers on probate matters in his county created an obvious appearance of evil even without a court appearance.

Q: Did the Committee decide whether he could run the advertisement?

A: No. It found that question unnecessary to reach, since the consulting itself was impermissible, and noted only that specialty advertising had been addressed in Opinions 107 and 108.

Background and rules framework

The opinion applied R. 1:15-1(d), the appearance-of-impropriety standard, and DR 8-101 (using public position for advantage), reinforced by State v. Galati, to a deputy surrogate's proposed probate-consulting practice. In current New Jersey terms, these concerns are analyzed under RPC 1.7 and RPC 8.4.

Citations and references

Rules of Professional Conduct:

• R. 1:15-1(d) (deputy surrogate barred from probate and estate or trust practice), as in effect 1976
• DR 8-101 (lawyer using public position to obtain an advantage), as in effect 1976; now analyzed under MR 8.4 / NJ RPC 8.4
• Conflict and appearance-of-impropriety concerns now under MR 1.7 / NJ RPC 1.7

Cases:

• State v. Galati, 64 N.J. 572, 576 (1974), on the public-consciousness impact of ethics questions

Other opinions cited:

• NJ ACPE Opinion 332, 99 N.J.L.J. 496 (1976); Opinion 320, 98 N.J.L.J. 857 (1975); Opinion 261, 96 N.J.L.J. 1150 (1973); Opinion 107, 90 N.J.L.J. 245 (1967); Opinion 108, 90 N.J.L.J. 245 (1967)

See also

• NJ ACPE Op. 351: Municipal Attorney Representing a Police Officer at a Probable-Cause Hearing
• NJ ACPE Op. 355: A Freeholder's Partner as Assistant County Counsel

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp354-1.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. 977, November 4, 1976

OPINION 354

Conflict of Interest
Deputy Surrogate Probate Consultant Advertising Specialty

The inquirer is a deputy surrogate and an attorney of this State. He requests an opinion as to whether he may insert an announcement in the Lawyers Diary and Manual that he will act as a consultant in the field of probate law, but only that field. He will not act as associate or appear in court on probate matters.

He calls attention to R. 1:15-1(d), which provides that an attorney who is a deputy surrogate in any county shall not practice law in any criminal quasi-criminal or penal matter, whether judicial or administrative in nature, in that county, nor in the probate division of any county court or in any estate or trust matter in any court. He also cites our Opinion 332, 99 N.J.L.J. 496 (1976), in which we stated that it was not improper for a member of the Bar of New Jersey to advertise his availability to act as a consultant to or associate with another attorney in a particular field of law by inserting a notice in the New Jersey Law Journal, a weekly publication, or in the Lawyers Diary and Manual, an annual publication.

Implicit in the request is the assumption by the inquirer that he can, while a deputy surrogate, act as a consultant to other lawyers on probate matters even though he is not associated with them and will not appear in court. He apparently sees no problem in this conduct, but it is our view that such action is impermissible. Although not required to rule on this, we deem it advisable to make a finding concerning it, since we are informed that there are several individuals in this State holding similar offices who are so acting.

It seems to us that the above-cited rule was intended to prohibit any attorney who is a deputy surrogate from engaging in any facet of the probate law while he occupies that office. For him to be a consultant to lawyers who have probate matters in his county, even though he will not appear in court, is to create a situation where there is the obvious appearance of evil.

As the Supreme Court stated in State v. Galati, 64 N.J. 572, 576 (1974), and as we have stated in numerous opinions, in matters of ethics and professional probity, the cause and effect impact on the public consciousness is almost, perhaps quite, as important as the actual fact. Not only must public officers and quasi-public officers refrain from improper conduct, but they must refrain from anything which gives the appearance of impropriety. See Opinion 320, 98 N.J.L.J. 857 (1975), Opinion 261, 96 N.J.L.J. 1150 (1973), and other opinions.

We have no doubt that R. 1:15-1(d) precludes a deputy surrogate from advising members of the Bar on probate matters. This proposed conduct may also violate DR 8-101, referring to the use by a lawyer of his public position to obtain an advantage. It is a reasonable inference that the inquirer was not consulted as an expert on probate until he became a deputy surrogate. Otherwise, his inquiry would have been whether he could continue to consult with members of the Bar on probate matters, rather than whether he could begin such consultant services. The answer clearly is that he cannot.

The disposition of this question makes it unnecessary to answer the question with respect to the insertion of the notice in the publication referred to. However, advertising of legal specialties under proper circumstances and in approved publications was dealt with in our Opinion 107, 90 N.J.L.J. 245 (1967), and Opinion 108, 90 N.J.L.J. 245 (1967).